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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: [email protected]
www.law.uq.edu.au