Katrine Del Villar1
1QUT, Brisbane, Australia
Self-binding advance directives (also known as Ulysses directives) are increasingly being promoted as valuable tools for people with certain mental health conditions, such as schizophrenia or bipolar disorder. They enable people with mental illness to provide advance consent to mental health treatment they know will be efficacious in an acute situation, but to which they know they will object during a crisis.
However, the law in Australia governing the enforceability of Ulysses directives varies considerably. Advance directives for mental health treatment may be made under the common law, in the majority of jurisdictions under legislation applicable to advance care planning generally (but designed primarily with end of life decisions in mind), and in the ACT under specific mental health laws. There is no uniformity of approach between these various laws. Additionally, the availability of additional legislative provisions serves to strengthen the validity of Ulysses directives in some States, whereas poorly drafted exceptions undermine their utility in other States.
Using a case study based on an actual advance directive written by a Queensland woman, which was not followed in her mental health crisis, this paper will summarise the current legal situation in each Australian State and Territory. It will conclude with a proposal for legislative change to ensure that people with mental illness can execute a valid and enforceable Ulysses directive, should they wish to do so.
Katrine Del Villar is a PhD student in the Australian Centre for Health Law Research at QUT. Her thesis topic is the Legal Enforceability of Mental Health Advance Directives in Australia. Katrine lectures part-time in Constitutional Law at Griffith University. Before taking time off to raise her family, Katrine was associate to Justice Gaudron and worked in private practice and for the Commonwealth Parliamentary Research Service.