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17 October 2016 Advanced Care Directives

By Angela Harvey, Partner and Alexander Moddel, Graduate Solicitor


IN BRIEF

In this article, we examine Advanced Care Directives (ACDs) and how they can be used to assist your loved ones to make decisions about your medical treatment in circumstances where you lack the capacity to make such decisions for yourself.  


What is an ACD?

An ACD is a document which sets out the types of medical treatment that a person wishes to be administered or refused in circumstances where:

  1. they are sick but expected to get better (or where their level of functioning is acceptable to them); and
  2. they are sick and not expected to get better (or where their level of functioning is not acceptable to them).

Such treatment options include the use of blood transfusions, methods of feeding, life sustaining measures such as CPR as well as general levels of patient care (from an intensive level of care to palliative care).  

For example, an unacceptable level of care could be where a person is so seriously ill or injured that the person would be unlikely to recover to the extent that the person can live without the use of life-sustaining measures.  In such circumstances, an ACD can be used to indicate that certain types of medical treatment are to be refused.

Who can make an ACD?

An ACD can be made by any person who is over 18 years of age and who has capacity.  

The case of Mr A 

In the case of Hunter and New Area Health Service v A [2009] NSWSC 761, the defendant Mr A was a patient in a hospital conducted by the plaintiff.  Mr A developed renal failure as a result of septic shock and respiratory failure and was being kept alive by mechanical ventilation and kidney dialysis.  The hospital became aware of a document prepared by Mr A dated about 12months prior to being hospitalised, indicating that he would refuse dialysis treatment.  The hospital commenced Court proceedings seeking a declaration to the effect that the document referred to was a valid ACD and that the hospital would be justified in complying with the wishes Mr A expressed.

In considering the matter, the Court recognised two relevant but in some cases, conflicting interests:

  1. a competent adult's right of autonomy or self-determination: the right to control his or her own body, and
  2. the interest of the State (ie the hospital and its doctors) in protecting and preserving the lives and health of its citizens.

In determining the right of the hospital to withdraw dialysis, the Court recognised a competent adult's right to autonomy, but not a 'right to die'.  It is important to recognise that an ACD must not contain instructions for illegal activities such as euthanasia or assisted suicide.  

In this case the Court declared the ACD to be valid and permitted the hospital to withdraw dialysis treatment.  Had Mr A not had a valid ACD, it is likely that treatment would have been continued against his wishes.

What about in an emergency?

Where it is not practicable for a medical practitioner to obtain a patient's consent for treatment, and where that patient's life is in danger if appropriate treatment is not given, then treatment may be administered without consent.

However, where the patient has made an ACD specifying that he or she does not wish to be so treated and there is no reasonable basis for doubting the validity and applicability of the ACD, that ACD must be followed.  

How can I make an ACD?

An ACD should be in writing, signed and dated.  Whilst there is no mandatory form to use, we recommend consulting with an experienced legal practitioner to prepare an ACD for you to ensure its validity.

If you'd like to know more about creating an ACD or would like to enquire about estate planning please do not hesitate to get in touch via email or phone.

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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