3. The Advanced Health Directive

Introduction

What does quality of life mean to you?

It means different things to different people. How can you be sure that your wishes regarding your quality of life will be honoured if you can no longer communicate? Putting your wishes into writing will help to provide this security.

Often referred to as an “Advanced Health Directive”, a “Declaration of Life” or “Living Will”, such a document allows you to influence the decisions regarding your future medical treatment at a time when you cannot otherwise communicate your needs. For example, it may dictate the point at which you would like artificial life support systems to be removed. Such documents can be particularly important in “blended family” circumstances where differing views may arise.

Dying is an emotionally difficult topic and hence many do not address it. However, it is a subject which cannot and should not be avoid.

Why the Advanced Health Directive important?

An informed decision about the medical treatment you wish to allow, or refuse, should be made now if you want to ensure, insofar as possible, your quality of life. Often people will have strong views as to medical treatment they would like to receive, and which they would not. They may wish to direct certain medical procedures to occur or not to occur. However, at a given point of time, due to their physical and mental condition, they may be unable to communicate those directions.

The legal position of these documents in Australia is not settled and differs between each State and Territory. Clearly, the directions that you give in such document can only be followed if they are legally capable of being followed under the laws prevailing at that time and must be considered in light of the various rules and regulations that medical practitioners must adhere to.

As an example, we will consider the position in Queensland, Victoria and New South Wales.

Queensland has specific legislative guidance within the Powers of Attorney Act 1998 (QLD) which states that an Advance Health Directive must meet certain requirements and be in the approved form. One of these requirements is a certificate signed by a doctor attesting to your capacity at the time of making the document. The Queensland legislation also specifically provides that a direction in a valid Advanced Health Directive will have priority over a general or specific power for health matters given in an Enduring Power of Attorney.

In Victoria, statutory recognition of Advance Care Directives is currently under consultation. There is currently no specific legislation or standard form in Victoria dealing with Advance Care Directives. Victoria does however have specific legislation which allows a person to complete a “Refusal of Medical Treatment Certificate”.

Similar to Victoria, New South Wales does not have specific legislation dealing with Advance Health Directives. Rather, the Guardianship Act 1987 (NSW) uses the concept of ‘responsible person’ being the person health practitioners must consult with if you cannot give consent to medical treatment yourself. The Act specifies a hierarchy of ‘responsible persons’, being:

  1. the Enduring Guardian (provided the appointing document provides for the guardian to exercise
    the function of giving consent to carrying out medical treatment); otherwise
  2. the spouse (provided the relationship is close and continuing); otherwise
  3. the person who has the care of the person; otherwise
  4. a close friend or relative of the person.

The approach in NSW does not necessarily bind the ‘responsible person’ to follow your directions if you have previously communicated these via a written document such as a Declaration of Life or Living Will (as they are often referred to in NSW). Rather, the responsible person concept simply refers to who medical practitioners must seek consent from in the event you cannot provide it.

How to prepare yourself and your family

Given the differing positions in each State and Territory, it is important to cover yourself as best as possible if you wish to have the opportunity of communicating your wishes. Why is a lawyer telling you the importance of documents outlining your medical wishes? Because failing to understand the legal requirements may result in such documents failing at the opportune time.

The best approach will be to do the most that the relevant State/Territory legislation allows. In Queensland, this will be complying with the legislative requirements for a valid Advanced Health Directive. In Victoria and New South Wales, this will be ensuring that you have a valid appointment of Enduring Guardian and making the instrument appointing the guardian tie to a further document setting our your wishes (i.e. a Declaration of Life, Advanced Health Directive or Living Will etc). Other States and Territories may have other requirements and you should seek advice to ensure you put yourself in the best position possible to have your directions adhered to.

Don’t forget, it’s your life, these documents can ensure your wishes are met and provide welcome guidance to family members in difficult times.

Originally published in EQUITY SEPTEMBER 2016