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.

1

Lindy Willmott, Ben White and Ben Mathews, 'Law, autonomy and advance directives' (2010) 18
Jounal ofLaw and Medicine 3 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.

2 Lindy Willmott, ' Advance directives reusing treatment as an expression of autonomy: Do the courts
practise what they preach? ' (2009) 3 8 (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) 1 0 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 2 1 1 (reproduced in chapter 6).
3 Willmott, 'Advance directives to withhold life-sustaining medical treatment: Eroding autonomy
through statutory reform ' , above n 2 ; 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 1 0) 1 7
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.

1

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.
2. The cases that are identified are critiqued through close legal analysis of the
reasoning used and principles applied.
3

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.

4. The thesis also reviews, for the first time, all of the parliamentary debates in
Australian jurisdictions where such debate preceded the enactment of
legislation.
5. The thesis also examines all Australian legislation in detail, explaining how
the statutes regulate advance directives that reuse life-sustaining medical
treatment.
6. Features of a legislative ramework that are necessary to promote individual
autonomy are suggested.
7. 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

1 . Lindy Willmott, Ben White and Ben Mathews, ' Law, autonomy and advance
directives ' (20 1 0) 1 8 Jounal ofLaw and Medicine 366 - 389
2. 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 1
3. Lindy Willmott, 'Advance drectives to withhold life-sustaining medical
treatment : Eroding autonomy through statutory reform' (2007) 1 0 Flinders
Journal ofLaw Reform 287 - 31 4
4. Lindy Willmott, Ben White and Michelle Howard, 'Reusing advance
reusals: Advance directives and life-sustaining medical treatment' (2006) 30
Melboune Universiy Law Review 2 1 1 - 243
5. Lindy Willmott, 'Advance directives and the promotion of autonomy: A
comparative Australian statutory analysis' (20 1 0) 1 7 Jounal of Law and
Medicine 556 - 5 8 1


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 1 - Introduction
1.1
1 .2
1 .3

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2.7
2.8
2.9

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1
2
2
9

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26
30

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33

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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
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2.4
2.5
2.6

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Chapter 2 - Literature Review
2. 1
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
..........

1 .4
1 .5

...

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PART

Chapter 3

..................................... . . ...

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PUBLISHED PAPERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Law, Autonomy and Advance Directives

. . . . . . . . . . . . . . . ..................... .........

82
83

Chapter 4 - Do the Courts Practise What They Preach? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 08
Chapter 5 - Eroding Autonomy Through Statutory Reform
Chapter 6

Reusing Advance Reusals

. . . . . . . . ..........................

....................

1 85

.....................................................

219

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Chapter 7 - A Comparative Statutory Analysis

.

1 56


PART

- GENERAL DISCUSSION

Chapter 8 - Discussion
8.1
8 .2
8.3

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.

. . . . . . . . . .

.

. 246
.

. . .

247

Main features linking the publications cumulative effect of the papers
. 247
Original and signiicant contributions to knowledge
.
. 262
Final ren1arks
266

PART

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- APPENDICES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

Appendix A Statement of Contribution of Co-Authors for 'Law, Autonomy
and Advance Directives ' Thesis by Published Paper
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. . . .

. . . . . . . . . . . . . . . . . . . . .

269

Appendix B - Statement of Contribution of Co-Authors for 'Reusing Advance
Reusals ' Thesis by Published Paper.
..
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. . 271
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BIBLIOGRAPHY

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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

PART 1: INTRO DUCTION AND LITERATURE
REVIEW

1


CHAPTER 1- INTRODU CTIO N

1.1

Description of the research problem, overall objectives
and speciic aims

1 . 1.1

Description of the research problem investigated

Adults who are legally competent to make decisions about medical treatment
generally wish to engage in the decision-making process with their doctor, and
ultimately to decide on a treatment plan. Competent adults may also wish to make
decisions about medical treatment that they receive in the uture, ater the person
loses decision-making capacity (for example, through the proression of an illness
affecting cognitive unction or through prolonged loss of consciousness) .

These

decisions can and do requently relate to treatment that the person does not wish to

receive, including life-sustaining medical treatment.

Instructions about uture

treatment that an individual does not wish to receive can be made in an advance
directive which is an oral or written statement giving instructions about medical
treatment. The issue of providing instructions about the withholding or withdrawing
of medical treatment is becoming increasingly important for two reasons. First, the
population is ageing, so that more individuals are likely to experience loss of
decision-making capacity at some uture time. Secondly, advances in medical
science mean that it is increasingly possible for medical practitioners to keep a
person alive ater the person has lost the capacity to make decisions about what
medical treatment he or she wishes to receive.

Yet, there is surprisingly little research into the nature and justifiability of existing
legal regimes about what an individual can do to make decisions about reu ing
uture medical treatment in such situations, which will bind medical practitioners and
others. Some research has considered cmmnon law principles governing advance
directives, and has remarked on the reluctance of the judiciary to follow advance
directives that reuse life-sustaining medical treatment. However, there has not been
a comprehensive review of all common law decisions in Australia and England
concerning advance directives that reuse treatment. Further, there has not been a
2


comprehensive examination o f why advance directive legislation was enacted in
Australia, or of how these schemes operate.

Nor has there been an evaluation,

through legal or theoretical critique, of the extent to which the comon law and
legislative schemes promote (or restrict) individual autonomy.

This thesis identifies and comprehensively reviews the publicly available common
law decisions on advance directives in Australia and England, reviews the relevant
parliamentary debates to examine why advance directive legislation was enacted in
the various Australian jurisdictions, examines how those statutory schemes operate,
and undertakes a legal critique of the common law and a critical evaluation of the
extent to which existing common law and statutory regimes promote autonomy.

1.1.2

Overall objectives of the study

The principal objectives of this research are to identify how advance directives that
reuse life-sustaining medical treatment are regulated by the common law in
Australia and England and legislation in Australia, and to critically evaluate the
extent to which this regulation promotes the value of autonomy. The research is
concerned with a specific medico-legal context.

The research investigates the

situation that arises when a person has made a decision in advance (trough an
advance directive) to reuse life-sustaining medical treatment should a particular
medical situation eventuate, in circumstances where that situation does eventuate and
the person has then lost the capacity to make treatment decisions.

The principal

objectives contain three more specific objectives.

The irst objective is to select a nonnative ramework against which to evaluate the
models of legal regulation. Informed by the principles that underpin the co1 non
law and legislative regimes, the ramework of autonomy is identified as a possible
tool for this purpose. Once identiied, the principle of autonomy is urther explored
to test whether there is su icient justification for it to be used as a tool against w ich
to evaluate models of legal regulation. This urther research suggests that there are
broader grounds to justify its use as an evaluative tool. While my thesis does not
suggest that autonomy is the only organising principle which could be used for this
purpose, it concludes that it is at least a defensible one.
3


The second objective is to identify and synthesise both the common law in Australia
and England, and legislation on advance directives that operate in the various
Australian States and Territories. This analysis involves a consideration of when
advance directives will be valid, when they can be completed, when they can
operate, and the circumstances in which a medical professional is excused for not
complying with the directive.

The third objective is to critique the existing legal regimes.

The critique of the

common law is undertaken at two levels. The irst is a legal critique ofthe principles
applied and the reasoning employed by judges in arriving at their decisions. These
findings then inform a theoretical critique of the common law, to ascertain whether
the law, as applied, promotes the principle of autonomy. The statutory regimes are
then evaluated against the benchmark of autonomy. The research generated rom
achieving the irst and second objectives is used to undertake this critique of the

common law and legislation.

1.1.3

Specifi c aims of the study

To meet the overall objectives outlined above, a number of speciic

ms were

developed. These aims are considered below.

Identiying and developing an appropriate normative framework
The rst objective is to select a normative framework against which to eval ate the
models of legal regulation. A number of specific aims were developed to meet this
objective.

The first aim [aim 1 . 1 ] for this objective is to identify those cases in Australia and
England that considered the principles that underpin the common law on advance
directives. The relevant principles in this regard are autonomy, and sanctity of life.
The common law observes that the principle of autonomy, rom which emanates a
right of an individual to detennine his or her own treatment, demands that he or she

4


is able to reuse treatment, even if that results in the person' s death. On the other
hand, the common law cases also recognise the principle of the sanctity of life. This
principle recognises the State's interest in ensuring the well-being of its citizens.

The second aim [aim 1 .2] is to review those decisions to evaluate how the common
law balances the principles of autonomy and sanctity o f life, and why autonomy was
chosen as the prevailing principle to guide the development of the common law when
assessing whether an advance directive that reuses life-sustaining medical treatment
should be followed. Although the courts generally note that tension exists between
the principles, there has not been a case involving advance directives in which a
court has decided that the sanctity of life should prevail over autonomy. Indeed, in a
recent Australian decision, one judge cited a famous Canadian case, noting that ' [t]o
deny individuals reedom of choice with respect to their health care can only lessen,
and not enhance, the value of life '

This statement emphasises the prominence of

autonomy by suggesting that it, in itself, is an important component of human
existence which falls within the notion of sanctity of life and, therefore, deserving of
protection.

The third aim [aim 1 .3 ] is to locate and review the parliamentary debates in relevant
Australian jurisdictions to detennine the legal and policy justifications for enacting
legislation on advance directives.

As demonstrated by that enquiry, legislatively

enshrining common law principles was the prevailing factor driving statutory reform.
To this extent, the principle of autonomy that underpins the common law can be seen
to indirectly underpin the legislative regimes.

The preliminary review of the cm non law and the relevant parliamentary debates
identified autonomy as an important principle to underpin legal regulation.

The

fourth aim [aim 1 .4] of the research is to settle upon a definition of autonomy that is
adequate for the purpose of this thesis. This thesis does not purport to undertake a
comprehensive review of all of the philosophical and ethical literature on the various
meanings of autonomy. However, a review is carried out of the seminal literature
that has considered autonomy in the context of advance directives, and a definition
1 Malette v Shulman ( 1 990) 67 DLR (4 ) 3 2 1 , 334 (Robins JA) cited by McDougall J n Hunter and
New England Area Health Sevice v A (2009) 74 NSWLR 88, [ 1 6] .

5


that is satisfactory for the purpose of c itiquing legal regulation of advance directives
is chosen.

The ith aim [aim 1 . 5] is to determine whether autonomy, as identified by the
common law and (inferentially) in the parliamentary debates, can be justified as an
appropriate ramework to underpin legal regulation of advance directives. As part of
this analysis, a sixth aim [aim 1 . 6] is to examine the arguments that have been
advanced against autonomy as an appropriate standard in the context of legal
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 objective is to ident

and synthesise both the common law in Australia

and England, and legislation on advance directives that operate in the various

Australian States and Territories. There are only a handul of cases that consider the
law on advance directives in Australia and England, and this thesis identiies and
synthesises those decisions. This process is also undertaken in relation to all of the
statutes that regulate advance directives in Australian jurisdictions.

In many

different aspects of statutory regulation, a comparative analysis across jurisdictions is
also undertaken. A number of speci c aims were developed to achieve the second
objective.

The first aim [aim 2. 1 ] for this second objective is to identify all of the publi ly
available common law decisions in Australia and England that consider whether or
not an individual ' s advance directive that reuses life-sustaining medical treatment
should be relied upon to determine treatment. Once identiied, the second aim [aim
2 .2] is to review those decisions to establish the relevant principles that govern when
an advance directive is valid, when it is applicable to the medical situation that has
arisen, and when a medical professional is excused for not following it.

The third aim [aim 2.3] is to identify the legislation that has been enacted in the
Australian States and Territories. Legislation has been enacted in six of Australia ' s
eight jurisdictions, Tasmania and New South Wales being the only jurisdictions
6


regulated by the common law alone. The fourth aim [aim 2.4] for this objective is to
review those statutes to examine the way in which advance directives are regulated.
Issues that are the subject of regulation are:
•

formal requirements for completion of an advance directive;

•

circumstances in which an advance directive can be completed;

•

circumstances in which an advance directive can operate; and

•

circumstances in which a medical professional is prohibited or excused
rom not complying with an advance directive.

Critiquing the existing regulatory regimes
The third objective is to critique the existing legal regimes.

The critique that is

undertaken has two components. The first is a legal critique which is ca ied out
predominantly in relation to the common law.

Secondly, a theoretical critique is

undertaken which involves evaluating the common law and legislation against the
benchmark of autonomy. A number of specific aims were developed to achieve this
objective.

The irst aim [aim 3 . 1 ] to achieve this objective is to conduct a detailed critique o f

the common law cases. This i s carried out by analysing the judgments in all the
common law decisions that have been identified, and undertaking both a legal and
some theoretical critique of those decisions. The legal analysis focuses on the legal
principles that have been applied, and the reasoning emplo ed by the judges. This
legal critique facilitates an assessment of the extent to which some members of the
judiciary promote or restrict the exercise of autonomy by competent individuals who
have completed an advance directive that reuses treatment.

The purpose of this

exercise is to provide a better understanding of how, and possibly why, a particular
outcome regarding the applicability of advance directives is reached. An assessment
can then made of the extent to which in realiy the common law decisions re ect or
promote the principle of autonomy.

The second aim [aim 3 2] is to identify barriers t at may exist in the absence o f
statutory regulation, which militate against a common law advance directive that
7


reuses life-sustaining being followed. The focus here is on practical barriers such as
medical professionals being uncertain whether the drective is a valid one or whether
the individual had capacity when he or she completed it.

These barriers are in

addition to those identiied as a result of the research referred to under aim 3 . 1 above.

The third aim [aim 3 . 3 ] is to conduct a detailed critique of the legislative regimes
governing advance directives to assess the extent to which statutory provisions

promote or restrict the exercise of autonomy by competent individuals.

1.1.4

Conclusion

This section of the chapter has described the principal objectives ofthe thesis, broken
them down into three main objectives, and set out the aims that have been developed
to achieve those objectives.

For ease of reference, the three main objectives and

corresponding aims have been summarised in tabular form in section 1 .3 below. In
summary, the principal objectives of this thesis are to identify how the common law
(in Australia and England) and the legislation (in Australia) regulate advance
directives that reuse life-sustaining treatment, and to critically evaluate the extent to
which such regulation promotes autonomy.

The first objective of selecting a normative ramework against which models of legal
regulation can be evaluated is achieved through meeting the specific aims of
identiying and reviewing relevant cases, parliamentary debates and legislation to
identiy autonomy as the underpinning regulatory principle, selecting an appropriate
deinition o f autonomy and examining whether that principle can be defended as a
normative ramework in the context of the legal regulation of advance directives.

The second objective of identifying and synthesising the common law and legislation
is achieved through the speciic aims of identifying all publicly available common
law decisions in Australia and England, all the relevant legislation in Australia and
reviewing that primary material to understand how the various regulatory regimes
operate.

8


The third objective of critiquing the existing legal regimes is achieved by the specific
aims of analysing the judgments in the case law to understand how and why
decisions are made, identifying other practical barriers that may militate against
common law directives being followed, and critiquing both the common law and the
legislative regimes against the benchmark of autonomy.

The research that has been undertaken to achieve the stated objectives has identified
problems with existing models of legal regulation for individuals who want to make
an advance directive that reuses life-sustaining medical treatment. The findings are
that existing methods of regulation need to be modiied to enable competent adults to
make advance directives that reuse life-sustaining medical treatment, which will
bind health professionals and others, and thereby promote individual autonomy.

1.2

Account

of research

progress:

Linking

the

research

papers

There are several purposes of this section of the chapter. First, the five research
papers that comprise the thesis are identified.

Secondly, the interrelation of the

research papers is detailed, explaining how they proress rom one to the other, and
how they form a cohesive body of literature. This exercise is intended to provide
continuity for the entire thesis. Finally, this section describes how the various papers
achieve the objectives and aims that were articulated in section 1 . 1 of this chapter.

The next section of this chapter (section 1 . 3) contains a table summansmg the
information that is provided in this 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 is comprised of the following five published papers:

9


1 . Lindy Willmott, Ben White and Ben Mathews, 'Law, autonomy and advance
directives ' (20 1 0) 1 8 Journal ofLaw and Medicine 366 (referred to as 'Law,
autonomy and advance directives')

2. Lindy Willmott, 'Advance directives reusing treatment as an expression o f
autonomy: D o the courts practise what they preach? ' (2009) 3 8(4) Common
Law World Review 295 (referred to as 'Do the courts practise what they
preach? ')
3 . Lindy Willmott, 'Advance directives to wit

old life-sustaining medical

treatment: Eroding autonomy through statutory reform' (2007) 1 0 linders
Journal ofLaw Reform 287 (referred to as 'Eroding autonomy')
4. Lindy Willmott, Ben White and Michelle Howard, ' eusing advance
reusals: Advance directives and life-sustaining medical treatment' (2006) 3 0
Melboune Universiy Law Review 2 1 1 (referred to as 'Reusing advance
reusals ')
5. Lindy Willmott, 'Advance directives and the promotion of autonomy: A
comparative Australian statutory analysis' (20 1 0) 1 7 Jounal of Law and
Medicine 5 5 6 (referred to as 'A comparative Australian statutory analysis')

1.2.2

Preliminary comment

This thesis comprises five chapters that are integrally linked and which, together,
achieve the objectives and aims of the thesis.

As will be demonstrated in the

following analysis, there is a close correlation between the ive papers, when
considered as an integrated whole (rather than individually), and the three objectives
and associated aims identiied in the preceding section.

There is also a loose

correlation between the five papers and the objectives and aims which may be
helpul to identify at the outset.

10


Correlation between objectives and papers
Objective 1 is to select a normative ramework against which the models of legal
regulation can be evaluated. To a large extent, the

st paper, 'Law, autonomy and

advance directives' contributes to this objective.

Objective 2 is to identi

and synthesise the common law in Australia and England

and statutory regimes in Australia on advance directives.

The common law is

examined predominantly in paper two, 'Do the courts practise what they preach? ' ,
while the statutory regimes are considered in the third, fourth and fith papers,
'Eroding autonomy' , 'Reusing advance reusals ' and 'A comparative Australian
statutory analysis ' .

Objective 3 is to critique the existing legal regimes. A s for objective 2 , the co mon
law is critiqued predominantly in paper two, 'Do the courts practise what they
preach? ' , while the statutory regimes are critiqued in the third, fourth and fith
papers, 'Eroding autonomy', 'Reusing advance reusals ' and 'A comparative
Australian statutory analysis ' .

Overlap of material across papers
A thesis by publication requires the published papers to be closely linked, and to
establish and develop a thesis. In this kind of integrated work, there will inevitably
be a degree of repetition of some material throughout the papers.
example illustrates how this overlap can occur.

The following

In this thesis, the common law

governing advance directives was central to all three objectives: selecting the
normative

amework of autonomy, identifying and synthesising the co

on law

principles, and critiquing those principles. Accordingly, it was necessary to consider
the common law principles that regulate advance directives in more than one paper.
These common law principles were reviewed predominantly in the second paper,
'Do the courts practise what they preach? '

This p aper outlined the governing

principles, and examined in depth various aspects of the common law that has
received judicial consideration.

Common law principles were also described (or

referred to), albeit to a lesser extent, in the other four papers. In the
11

st paper,


'Law, autonomy and advance directives' , autonomy is positioned as the normative
ramework for the thesis, and it was necessary to consider the common law
judgments to the extent that comments were made about how autonomy underpinned
the law. Further, in papers three, four and ive, where the focus was on reviewing
the statutory models of regulation, common law principles were considered to
facilitate a comparative analysis between the common law and statutory regimes.
Where common law principles were considered in a lin ed context (as in papers one,
three, four and five), they were not examined in the same depth as was undertaken in
the primary work (in this case, in paper two).

The purpose of this preliminary comment is to explain the need for some level of
repetition across the published papers. As indicated, this is unavoidable and indeed
essential, given the need for the five papers to represent a cohesive and integrated
body of scholarship on a topic that is suitable for doctoral analysis.

1.2.3

Autonomy as appropriate normative framework: the first and
fifth papers

The first paper, 'Law, autonomy and advance directives ', and sections of the fith
paper, 'A comparative Australian statutory analysis', 2 are central to the development
of autonomy as the normative ramework that underpins this thesis.

'Law, autonomy and advance directives' serves several un tions. As a preliminary
matter, the paper settles on a definition of autonomy that is appropriate in the context
of regulating advance directives. The paper notes that there are many different views
about what is meant by the principle of autonomy, but the deinition chosen for the
purpose of the ist paper is that of Raanan Gillon's:

Autonomy (literally, self rule) is, in summary, the capacity to think, decide,
and act on the basis of such thought and decision reely and independently and
without . . . hindrance. 3
2

Lindy Willmott, 'Advance directives and the promotion of autonomy: A comparative Australian
statutory analysis' (2010) 17 Jounal of Law and Medicine 556, the relevant sections of this paper
being: ' Expressed significance of autonomy in common law and statutory regulation ' ; and ' Essence of
autonomy at common law and statutory regulation' .

12


Secondly, the paper identiies the role that autonomy plays at common law. This
involves a consideration o f the legal principles that are relevant in determining
whether an advance directive is valid and applicable to the medical situation that has
arisen.

It also reviews the relevant judgments to distil the principles that the

judiciary consider to be relevant to guide lawmaking in this field.

That review

concludes that the principle of autonomy has been expressed to prevail over that of
sanctity of life when considering a competent adult 's right to reuse treatment,
whether contemporaneously r in advance of the medical situation arising.

The third and most substantial unction of the paper is to consider whether the
principle of autonomy, identified by the common law as the relevant principle to
underpin legal regulation, can be justiied.

It is argued that this approach can be

justified on the following three grounds, each of which is considered in detail in the
paper:

1 . That the principle o f autonomy is consistent with the principles and values
that are prioritised in a liberal democracy;
2. That the principle of autonomy is consistent with prevailing principles
medical ethics discourse; and
3 . That the principle of autonomy

consistent with the common law that

governs contemporaneous (rather than advance) reusals of life-sustaining
medical treatment.

As part of its justification o f autonomy as an appropriate nonnative ramework, the

paper engages with literature that is critical of autonomy as an organising principle to
justify the regulation of advance directives . These criticisms, which are made both
rom a theoretical and practical perspective, are explored and reasons advanced as to
why these criticisms should not prevent autonomy rom operating as an underpinning
principle. The arguments that are considered in this paper are that:

3

R Gillon, 'Autonomy and the principle of respect for autonomy' ( 1 985) 290 British Medical Journal
1 806, 1 806 extracted in SL Lowe, ' Autonomous agency and consent in the reatment of the term nally ill'
n H Maehle and J Geyer-Kordesch (eds), Historical and Philosophical Perspectives on Biomedical
Ethics: From Paternalism to A utonomy (Aldershot, 2002) 129, 1 30.

13


1 . An ad ance directive made by a competent adult may lack ' moral authority'
to bind a person who later loses capacity and who may have different views
or opinions rom the competent adult who completed the advance directive.
2. There may be some models besides autonomy - for example, a model that
considers the adult's condition, prognosis, views of the adult ' s loved ones and
concerns of the adult ' s broader community, that are better suited to underpin
the regulation of advance directives.
3 . Most individuals have not received suficient information t o enable them to
satisfactorily complete an advance directive that purports to cover a wide
range of uture medical contingencies.
4. Competent adults may change their choice of treatment (or non treatment)
over a period of time. This 'instability of patient choice' may not easily be
accommodated if advance directives are binding.
5. An advance directive may not, in fact, be a true reflection of the competent

adult 's wishes.
6. An advance directive rarely provides helpul information to medical
professionals.

The irst paper contributes to the objective one by establishing autonomy as an
appropriate principle against which legal regulation should be assessed. It achieves
the specific aims of identiying and reviewing common law judgments that consider
underpi

ing principles (aims 1 . 1 and 1 .2), justifying autonomy as an appropriate

normative ramework (aim 1 . 5), and addressing criticisms of autonomy in this
context (aim 1 . 6) .

The fith paper, 'A comparative Australian statutory analysis ' , is relevant to
identiying autonomy as a normative ramework in two ways. First, in the same way
that the first paper reviewed the common law judgments to determine the principle
that underpinned the common law, this paper reviews the parliamentary debates in all
Australian jurisdictions that have enacted legislation on advance directives. That
review identiies uncertainty about applicability of common law principles as the
major driver for statutory reform. Inferentially, the desire to statutorily enshrine the
common law recognises the importance and significance of the principle of
autonomy in the regulation of advance directives. The second aspect of this paper
14