An Advance Health Care Directive (‘AHCD’) describes what treatment you would or would not consent to have in the event of a life threatening illness or injury. The most common instructions relate to circumstances in which you would refuse resuscitation (commonly ‘Do Not Resuscitate’ or ‘DNR’). An Advance Health Care Directive is usually completed with the assistance and advice of your treating doctor, usually your GP.
There is no specific or legislated form to use for an Advance Health Care Directive (AHCD). They are also referred to as just ‘Advance Care Directive’ or sometimes ‘Living Will’. As there is no legislation on AHCDs, the law supporting their validity relates entirely to the issue of consent to, or absence of consent to receiving treatment. The minimum requirements are as follows:
- That you had capacity when you wrote the document
- It has specific details about treatments that you would accept or refuse
- It is current (it was written recently, or at least has been reviewed recently without substantial changes)
- You were not influenced or pressured by anyone else when you wrote it
The official position of the NSW Government is that an Advance Health Care Directive should be treated as enforceable, and should be respected by medical professionals as a substitute for verbal consent from a patient. The law itself is, of course, more complex. The precedent for the enforceability of an AHCD is Hunter and New England Area Health Service v A  NSWSC 761.
In this case, Mr A had been admitted to hospital in an emergency situation for renal failure, and treated with dialysis. The hospital then became aware that he had written an AHCD stating that he would refuse dialysis. The hospital sought a court declaration as to whether they should be removing him from dialysis given the new information. The court held that if an AHCD is made by a capable adult, is written clearly and unambiguously, and extends to the situation at hand then it has to be respected as a specific refusal of consent to treatment. The court went on to find that in the clear absence of consent (leaving aside the exceptions of emergency treatment), it would be a common law battery to continue to administer treatment.
Avoiding Conflict with an Enduring Guardian or other family member’s wishes
You should also make sure that you discuss your choices laid out in the AHCD with people who may be acting as your carers and close family members who may be in a position to affect decision making in an emergency. Family members who do not understand your decision, when upset and uncertain in an emergency, may argue with treating professionals over treatment options. If there is doubt as to your instructions and you are not able to clarify your instructions, an Enduring Guardian or Guardian, carer, or family member may be asked to make a decision. If everyone is on the same page, it reduces the likelihood of disputes between family members and treating doctors and ensures that your wishes are carried out.
Finally, if there is no one available to give consent in a specific matter and the AHCD does not with sufficient clarity answer the question, the treating doctor will make the best judgement that they can about a specific situation.
How do I let the doctors know in emergency?
Ambulance workers are trained to check the fridge door to see if the AHCD is attached there. Therefore, that is a great place to keep the hard copy. You should also make sure that any close family members or carers who might attend the hospital in an emergency have a copy. If you have an E-Health record, make sure that your AHCD is included.
Completing an AHCD
We recommend the form available through the ASLaRC unit at Southern Cross University, and should be completed with the assistance of your GP. Reading the form will give you a better understanding of a number of medical scenarios.
The information in this blog is information only and should not be relied on as a definitive statement of the law as it applies in your specific set of circumstances.
Generally speaking, legal assistance is not required to complete an AHCD. If you have specific questions about AHCDs that relate to the law, you are welcome to write to us and we will endeavour to answer your questions in a timely manner.
If you have complaints about medical treatment, elder abuse, and other issues affecting older people you are also welcome to contact us to see what legal options might be available for you.
Additional Information Resources:
An example Advance Health Care Directive is available for download from the ASLaRC Aged Services Unit, based at Southern Cross University. They also provide a number of other resources free for download.
NSW Government has developed a website called Planning Ahead Tools, which is a collection of resources and information on a range of issues including topics such as Wills, Capacity, Guardianship, and Advance Health Care Directives.
An interesting blog entry via @AdeleHorin about ‘When is it Appropriate to Ignore an Advance Directive?‘ While it is US blog, it is a useful practical perspective on how the AHCD can work in practice.