Pub­li­ca­tions

Advanced Care Directives

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.