End of Life Decisions, the Law and Clinical Practice

The law in Australia applies to all citizens, regardless of cultural heritage or personal preference. In practice however, communicating and facilitating end of life decisions and conversations with patients from a range of diverse cultural and linguistic backgrounds can provide challenges to health care professionals.

These challenges are not new. Every day, health care professionals respond to patients and their families whose preferences and norms vary greatly from family to family, patient to patient. In practice, each patient requires their case to be managed sensitively and discreetly by health care professionals.

When and from where should I seek legal advice?

Health Professionals working within the NSW Ministry of Health can seek advice and support from their institution or Local Health District. They may also seek advice from the Legal and Regulatory Services Branch (Legal Branch) of the NSW Ministry of Health.

Only health professionals employed within the NSW Ministry of Health are eligible to seek and obtain legal advice and services from the Ministry’s Legal Branch.

If other health professionals who are not part of the NSW Ministry of Health require legal advice, they may wish to make enquiries within their own organisation, medical defence organisation or professional association.

If you think you require legal advice or support, first:

• Consult your senior treating clinician

If unresolved, you may contact one of the following:

 You may need to contact:

What may happen next – referral of your case onto:

The following flowcharts describe some of the processes recommended for escalating legal advice and support in certain end of life scenarios:

Am I at risk of being taken to court or the Tribunal by seeking legal advice?

• Seeking legal advice may avert the need to go to court (the Supreme or Family Court) or the Guardianship Division of the NCAT, and will not necessarily mean that a matter will go as far as the court or a Tribunal hearing.
• The majority of end of life cases in NSW are resolved within the treatment and care setting, between treating teams and patients’ families.
• There have been very few end of life cases in NSW which have lead to Supreme Court proceedings (approximately only one per year).

Note: Seeking guidance from the Supreme or Family Court about end of life issues (e.g. on the validity of an advance care directive or whether a treatment plan is in the patient’s best interests) is a different process and has different implications than cases where a Local Health District (LHD) and/or health practitioner are sued in negligence by a patient or family seeking financial compensation.

How can legal advice help me?

Seeking legal advice may help you:

• Clarify what your legal obligations as a health care practitioner are to your patient, their family, your employing health authority, and ultimately the courts.
• Provide you with information that may help in discussions with your patient or their Person Responsible in regards to end of life decisions.

In some cases, court orders can provide protections to health practitioners by providing clarity and guidance on how to proceed, for example in the case of court rulings on how an existing advance care directive should be applied in practice.

Will seeking a resolution through the courts or Tribunal lead to delays?

• Cases that go to court (the Supreme or Family Court) are often urgent applications and are therefore resolved fairly quickly, within days. Cases are rarely drawn out over extended periods of time.
• Urgent applications to the Guardianship Division of the NCAT can be heard within 24 hours. The Tribunal operates an after-hours service to ensure cases can be attended to at any time. All applications for consent to treatment or for the appointment of a guardian are triaged according to the risks to the person identified in the application – the triage categories range from hearings within 24-72 hours to 10 days, 28 days or within 3 months for the most complex and contested but non-urgent applications.

If I go to court, what is expected of me?

Matters will only proceed to the courts (the Supreme or Family Court) with the authorisation of your Local Health District (LHD) Chief Executive. As these types of cases are considered to be significant matters, NSW Ministry of Health Legal & Regulatory Services Branch will be notified. Your LHD will appoint you a lawyer and ensure that you are supported throughout the process.

The lawyer representing the LHD will explain what is expected of you, and what preparation is required. This may include asking you to:

• Prepare a written summary of the patient’s history, diagnosis, prognosis and treatment plan
• Obtain a second specialist medical opinion in writing, possibly from an expert from outside your institution
• Discuss this course of action with the family

If I lodge an application with the Guardianship Division of the NSW Civil and Administrative Tribunal, what is expected of me?

In making an application for consent to treatment or for the appointment of a guardian, you must:

1. Fill out all the relevant sections in the application form, including providing your contact and professional details
2. Tell the patient that you are making an application about them
3. Tell the Person Responsible that you are making an application about the patient
4. Provide details of all the people who have an interest in the application even if they disagree with it
5. Supply evidence to support your application including information about:
   • The patient’s disability
   • The patient’s lack of capacity
   • The need for a decision to be made
   • The patient’s views and the views of the patient’s spouse, carer and other key people
6. Include any available assessments and medical reports from other health professionals
7. Keep the Tribunal informed of any changes to the patient’s circumstances while your application is being considered
8. If the application proceeds to a hearing, give the patient a copy of the application and notice of hearing (both will be sent to you by the Tribunal)
9. Attend the hearing and arrange for the patient to attend or participate

A thorough application is likely to be processed faster and having at least one professional medical report attached to the application is recommended.

Anyone can apply, provided you have a genuine concern for the welfare of the person.

If you are making an application for consent to treatment, you must also provide information about:

1. The patient’s condition
2. The proposed treatment
3. Alternatives to the proposed treatment
4. The general nature and effect and any significant risks associated with all possible treatments
5. The reasons why you propose the specific treatment be carried out

If you are making an application for guardianship, you should also:

1. Provide information about the types of decisions that need to be made for the person (e.g. accommodation, services, health care, medical and dental consent)
2. Consider proposing someone to be appointed as a guardian, for example a family member, friend or the Public Guardian if there is no private person available to be appointed

More Resources:

• Further information about the NSW Civil and Administrative Tribunal (NCAT) and its Guardianship Division can be found here.
• Applications to the NSW Civil and Administrative Tribunal (NCAT) regarding guardianship can be made by accessing this Tribunal’s application page.

Key Contacts

The NSW legal context in which end of life decisions are made:

• The Guardianship Act 1987
• The Crimes Act 1900
• Mental Health Act 2007
• Children and Young Persons (Care and Protection) Act 1998

NSW Health Guidelines and Policies

• Consent to Medical Treatment – Patient Information (Jan 2005)
• Guidelines for End of Life Care and Decision Making (Mar 2005)
• Advance Care Directives – Using (Mar 2005)
• Using Resuscitation Plans in End of Life Decisions (Sep 2014)
• Advance Planning for Quality Care at End of Life: Action Plan 2013-2018 (Jul 2013)