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Advance care plans and the law
Role of advance care plans and directives

What is the role of advance care directives in end of life decisions?

What is an advance care directive?

  • An advance care directive is a type of advance planning tool that can only be completed by a person with decision making capacity. Advance care directives record decisions or value statements that describes a person’s future preferences relating to medical treatment, to be used in circumstances where the person loses capacity.
  • A Person Responsible cannot complete an advance care directive on behalf of another person. However a Person Responsible may participate in advance care planning.

How do I know that the advance care directive is valid?

What is an advance care plan?

  • An advance care plan is the documented outcome of an advance care planning process. Like an advance care directive, an advance care plan also records preferences about health and personal care and treatment goals. However, it may be completed by discussion or in writing and it may be made by, with or for the individual. If a health professional, a family member or someone who knows the person well makes an advance care plan on the person’s behalf, the known preferences of the person should be recorded.
What legal authority does an advance care plan or directive have?

What does the law say about advance care directives in NSW?

  • Advance care directives are legally enforceable in NSW. Although NSW does not have specific legislation on advance care directives, the Supreme Court has said that valid advance care directives must be respected (as an extension to a person’s right to determine their own medical treatment).
  • By not complying with a valid advance care directive, a health practitioner may be breaching his or her duty of care to their patient and therefore could be sued for negligence.
  • Administering treatment that a patient has refused in a valid advance care directive can be judged as a criminal assault or a civil battery.
  • The NSW Supreme Court case of Hunter New England Area Health Service v A [2009] NSWSC 761 illustrates how the Courts will honour an advance care directive and provides guidance on how they should be considered in practice. Read a case summary or the full case.
  • If an advance care directive is written in another State, regardless of the laws in the State in which it was written, it will be honoured in NSW.
  • Advance care directives cannot be used to ask someone to actively and deliberately end life.
  • Assisted dying or euthanasia is illegal in all Australian States and Territories.

What is the legal standing of advance care plans in NSW?

  • Advance care plans, like advance care directives, can capture a competent person’s wishes about treatment and care at end of life. Where an advance care plan documents the known wishes of a competent person, they should be considered in the same way, according to common law standards, as an advance care directive. Where advance care planning has never been able to include the person’s wishes due to lack of capacity, the advance care plan should be consulted as part of determining treatment and care decisions that are in the best interests of the patient.

Figure 4: Sourced from A National Framework for Advance Care Directives, The Clinical, Technical and Ethical Principal Committee of the Australian Health Ministers’ Advisory Council (2011)

The Clinical, Technical and Ethical Committee

NB: NSW does not have statutory ACDs as there is no legislation pertaining specifically to ACD, as in some other States and Territories.

What if I have doubt about the validity of the advance care directive?

  • Where there is genuine and reasonable doubt as to the validity or application of an advance care directive, an application can be made to the NSW Supreme Court to seek clarification and guidance. If a decision is needed urgently, then the case is often expedited and resolved within a matter of hours or days. If court action is taken, in the meantime, hospitals can administer the treatment in question, via the emergency principle, until the Supreme Court gives its decision.

What if the Person Responsible disagrees with what’s written in the advance care directive?

  • If an advance care directive is valid then decisions must be made in accordance with it. Health care professionals and Persons Responsible have no authority to override a valid advance care directive.
  • A Person Responsible, given their relationship to the patient, might be useful in helping to determine the validity of the directive by providing information about when and under what circumstances it was made and whether it was consistent with the expressed wishes of the patient.

What is the status of an oral directive, for example if a patient tells the family or a nurse what they do or do not want regarding life-sustaining treatments?

  • An oral directive can be as valid as a written directive, provided it is valid (has been made voluntarily by a capable adult, is clear and unambiguous and extends to the circumstance at hand).
  • Oral directives may arise where physical disability, illness or illiteracy means that writing is not possible but may also be the person’s preferred approach.
  • These wishes should be clearly documented in the person’s medical history, even if a specific advance care directive ‘form’ is not used, and made known through liaison between treating health professionals.

Do ambulance paramedics have to follow advance care directives?

  • Time critical situations responded to in the community make it difficult for paramedics to assess the validity of advance care directives.
  • Currently, NSW Ambulance protocols do not support ambulance paramedics to follow instructions in a patient’s advance care directive.
  • Ambulance paramedics, however, are allowed to act on authorised Resuscitation Plans. Resuscitation Plans are plans developed in hospital by an attending medical officer in consultation with the patient or their Person Responsible.

What is the status of advance care directives when someone has attempted suicide?

  • Attempted suicide and the status of advance care directives is complicated. As a general rule, health care professionals are advised to treat and seek advice from legal counsel within their institution or Local Health District (LHD) as soon as possible.

In the case of Margaret:

Margaret’s daughter produces an advance care directive prepared by Margaret the previous year. It states that she would not want CPR if she were dying and life support was being considered.

How should Margaret’s advance care directive be applied by the treating team?

Margaret has made clear instructions in her advance care directive for circumstances where she might be ‘dying and life support is being considered’. If her attending medical officer is satisfied that the directive was written voluntarily, at a time when she had capacity, the treating team would have to abide by the orders in the directive. The treating team would, through repeated discussions with Margaret’s family and by allowing sufficient time for the family to process the information, work towards following the directions in the directive.

If the treating team had any doubts about the validity and applicability of the directive, they should seek legal advice.

Advance care planning tools

Is there a standard advance care directive for NSW?

  • There is no one single template.
  • There are more than 20 different templates circulating in NSW, as well as advance care directives developed by individuals, eg. in letter form. A number of non-government organisations (NGOs), Local Health Districts, and the Royal Australian College of General Practitioners (RACGP) have developed sample templates for use.
  • An advance care directive can simply be written on a piece of paper, not witnessed and still be legally enforceable. Signed advance care directives are advisable but not essential.
  • If an advance care directive is written in another State, regardless of the laws in the State in which it was written, it can be enforced in NSW.
  • Find out more about how health care practitioners can play an important role in assisting patients to develop advance care plans and directives

Sample advance care planning templates: