Queensland Adult Guardian's

informal dispute resolution

processes for end of life

disputes

Katherine Curnow

OVERVIEW

1. End of life disputes.

2. What does “access to justice” require?

3. Three key barriers to access to justice for end of life disputes.

4. The facilitative dispute resolution processes of the Adult Guardian.

5. Conclusion.

WHAT IS AN END OF LIFE DISPUTE?

End of life disputes are confined to disputes about decisions

about the withdrawal or withholding of life sustaining measures

(LSM) from adults who lack capacity to make the decision for

themselves (“incapacitated adults”).

LSM is defined in s 5A, Sch 2 of the Guardianship and

Administration Act 2000 (Qld) as:

“health care intended to sustain or prolong life and that supplants or

maintains the operation of vital bodily functions that are temporarily or

permanently incapable of independent operation.”

PARLIAMENT

PARLIAMENT

PARLIAMENT

ACCESS TO JUSTICE

Access to justice requires equality of

accessibility as well as just outcomes for

individuals and society (Cappelletti et al,

1979).

Access “is more than just opening the door”

but instead the ability to fully and meaningful

participate in the justice system (Bhaba,

2007).

Justice in a legal context “typically denotes

the administration of the law according to

prescribed and accepted principles”

(Productivity Commission, 2014).

The justice that is accessible must be

accessible to all members of the community

who have a legal need (Jacob, 1982).

WHAT HAPPENS TO END OF LIFE

DISPUTES?

There are significant gaps in the available data.

Very few end of life disputes come before courts and tribunals.

Many are genuinely resolved outside the civil justice system

through everyday justice and informal dispute resolution, including

at the health provider level.

Some end of life disputes remain unresolved because of informed

inaction by a disputant. – That is, where an informed person decides taking action in relation to an end of

life dispute is unnecessary.

Some end of life disputes remain unresolved because of

constrained inaction by a disputant. – That is, where a disputant wants to take action in relation to the dispute but is

constrained from doing so by certain factors such as lack of knowledge or

information.

THREE BARRIERS TO ACCESS TO JUSTICE

FOR END OF LIFE DISPUTES

1. Substantial Power Differentials

– Resource

– Expert/information

– Formal

PARLIAMENT

PARLIAMENT

PARLIAMENT

THREE BARRIERS TO ACCESS TO JUSTICE

FOR END OF LIFE DISPUTES

2. Lack of information or

knowledge about the law or

the mechanisms for resolving

disputes

3. Concern about damaging

ongoing relationships

DISPUTE RESOLUTION BY THE

QUEENSLAND ADULT GUARDIAN

1. Provision of information and advice:

Includes assisting family members “to understand the medical

information, to obtain second medical opinions, and to consider the

implications of their decisions”

2. Mediation and Conciliation

3. Adjudication

Overriding Power

Year Exercises of overriding power

Other comments in OAG Annual Reports

2008/2009

3 On an unspecified number of occasions, requests to make a decision under s43 were resolved by providing information or advice to the doctor, guardian or attorney making the request.

2009/2010

6 -

2010/2011

7

19 requests from medical practitioners to make a decision under s43 but power not exercised due to resolution via alternative means.

2011/2012

0 9 requests from medical practitioners to make a decision under s43 but power not exercised due to resolution via alternative means.

2012/2013 2 7 requests from medical practitioners to make a decision under s43 but power not exercised due to resolution via alternative means.

CONTACT DETAILS

Katherine Curnow

TC Beirne School of Law

Forgan Smith Building

Level 3

The University of Queensland

St Lucia QLD 4072

Australia

Telephone: +61 7 3365 2206

Fax: +61 7 3365 1454

Email: k.curnow@law.uq.edu.au

www.law.uq.edu.au