Advance Health Care Directives in NSW

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 [2009] 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.

Legal Advice

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.

The Council of the Ageing, NSW (COTA NSW) is the peak body for people over the age of 50 in NSW. Their fact sheet on Advance Health Care Directives is available at this link.

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.

Lateline Followup: Many Nursing Homes Providing Inadequate Care

Lateline Followup: Many Nursing Homes Providing Inadequate Care

In July 2013, ABC’s Lateline ran a series of stories on nursing home failures to provide adequate care. We outlined these stories in our previous post. On Tuesday night (13 August), Margot O’Neill reported on some of the additional failings of Aged Care facilities, particularly focused on the under-staffing at some nursing homes resulting in staff being unable to provide much needed care for residents.

In one example, a patient was refused assistance getting up to urinate. In other cases, patients were left with pressure stockings overnight, or staff becoming frustrated and physically rough with patients.

There is almost universal agreement that the fault rarely lies with staff themselves. They are increasingly the pressure point in an industry that has a massively increasing demand for aged care nurses, no minimum staff to patient ratios, and what appears to be an incentive towards increasing profits ahead of patient welfare.

Quoting Sophie Cutriss, a registered nurse and aged care teacher,

“There are elderly people who are being dragged out of bed early in the morning because the staff feel that they won’t have time later in the day to give them a shower. This is quite common, that in order to get through those tasks quickly with limited staff, and I must, I must remind you that the staff are mostly caring, compassionate, empathetic, trying to do the best, trying to make a difference.”

With the Federal election well underway, there have been a number of calls for improving standards of aged care in Australia, or at least an improvement in the Aged Care Complaints handling system. Glenn Rees, CEO of Alzheimers Australia, called for zero tolerance on aged care in an interview with Emma Alberici in the same Lateline program.

“In theory the spot checks and the use of the standards and accreditation agency is meant to do that and as I said today at the Press Club, we were promised as consumers that the accreditation agency over time would weed out the bad apples in the industry. And, clearly that hasn’t happened. The preferable approach is to have some transparency in what the care outcomes are that are being achieved. And that isn’t in place, there aren’t any quality indicators and much of the monitoring that goes on is addressed the systems and compliance and not looking at quality of care. So I think the spot checks are useful. I think the complaints system has its limits because many consumers and indeed some staff are fearful of going to the complaints mechanisms.”

With 47% of voters at the coming election over the age of 50, Seniors Australia has suggested that this group should be able to influence policy. However, neither party has made commitments towards further improvements to aged care at this election.

Palliative Care Australia has also made calls for improved standards, stating that 147,000 Australians died in 2011, of which 107,000 would have benefited from access to palliative care services. Their statement outlines the following areas:

  • ACCESS – Palliative care should be available to all Australians, when and where they need it.
  • AWARENESS – Australians should be comfortable discussing and planning for the end of their life care with loved ones and health professionals.
  • EQUITY – Services should meet the needs of everyone in our community, particularly minority groups.
  • WORKFORCE – Care of the dying must be a standard education provision for every health professional across their career.
  • ADVANCE CARE PLANNING –Implement nationally consistent advance care planning legislation.
  • QUALITY – The Standards for Providing Quality Palliative Care for all Australians should inform good palliative care practice wherever it is delivered.
  • RESEARCH – Prioritise funding for palliative care research to support the development of innovative service models.
  • CARERS – Recognise that carers have needs too, and help them to support family members who want to die at home.
  • VOLUNTEERS have a vital role in the palliative care team. A national strategy for training and coordinating volunteers would help meet the growing demand for palliative care.

To be fair to current Commonwealth and NSW Governments, there have been a number of changes recently which aim to have a medium and long term impact on aged care and elder abuse issues. The ‘Living Longer Living Better’ reforms of the Commonwealth aim to overhaul and improve aged care over 10 years. The NSW Government’s Elder Abuse Helpline, Planning Ahead Tools, and Ageing Strategy are some of the improvements to ageing.

We hope that Aged Care continues to remain in the media during this election campaign, and that both major political parties commit to further improvements in accessibility and standards for aged care.

Aged Care failures in NSW Nursing Homes

Last Monday, 15 July 2013, ABC’s Lateline ran a segment titled ‘Aged Care Crisis’, outlining critical care failings in nursing homes in NSW and calling for a Royal Commission into Aged Care. In particular looking at the failure to provide adequate palliative care and pain management. In some cases, nursing homes failed to diagnose critical injuries, for example a broken thighbone, and assumed that patients were simply ‘a whinger’ and ‘attention seeking’.

“Her daughter Jane Green, who’s also a nurse, had to fight to get her mother taken to hospital where Margaret McEvoy was immediately put into palliative care. She died six weeks later. During those final weeks of attentive medical care in hospital, Jane Green was surprised to see the spirited, happy woman she knew as her mother re-emerge.”

Inadequate palliative care too often translates to inadequate pain management, and points back to an issue that many aged care advocates have said has been inadequate for many years. In 2010, Professor Colleen Cartwright was writing “it can be only a matter of time before the first case [of a doctor or hospital being sued for inadequate pain management] appears in the Australian courts”.

Failure to provide appropriate pain management in nursing homes has significant, albeit theoretical, legal consequences ranging from medical negligence to breach of contract. Anyone would have to question the efficacy of a possible court action in addressing as urgent an issue as immediate palliative care.

The initial Lateline story drew a follow up the following evening, outlining another story of chronic neglect and possible abuse, and called for further stories from the public with a view to further stories to come.

Alzheimers Australia President, Ita Buttrose, also called for greater awareness of the issues and promised to ‘shame’ the NSW and Federal governments into acting on aged care.

Courts are not well equipped to address critical shortcomings in palliative or ongoing care for nursing home residents. However, Australia has an Aged Care Commission. By Monday of this week, the Aged Care Commission was also under scrutiny for its own shortcomings, after ABC Lateline reported family members making complaints were being penalised by nursing home staff and management.

Last night, 23 July, Lateline reported that up to 70% of Nursing Home residents were being sedated, largely as a form of behaviour management. The possible side effects of some medication could be increased risks of pneumonia, 3-fold increase in the risk of experiencing a stroke, and premature death. Most patients improved, it was reported, when taken off sedative medication.

Given a situation where the legal system is likely to be too slow to take action, the aged care complaints commission is inadequately funded to effectively investigate and act on many complaints, and aged care residents face the twin problems of under medication for pain relief and over medication of sedatives for behaviour management, a better government response is needed. Ineffective pain management and excessive sedation are both forms of elder abuse. Evidence, and an effective timely remedy are the main challenges. If you are in two minds about what to do, always start by keeping a diary and detailed records of all conversations and observations. If you have a question you would like us to look into, please contact Change Legal for a no-obligation, free, and confidential chat.



15.7.13: the original Lateline

16.7.13: The follow up

19.7.13: Ita Buttrose from Alzheimers Australia weighs in

22.7.13: The aged care complaints system gets hammered

23.7.13: and on sedation – apparently 70% of nursing home residents are sedated with the allegation that most of this is merely behaviour management.

In addition, two older (2012) Lateline stories following related themes:

16.8.12: Familes Count Cost of Dementia Drugs Prescriptions

29.8.12: Doctors could face prison over drug prescriptions

World Elder Abuse Awareness Day

15 June is World Elder Abuse Awareness Day. Change Legal is offering free legal advice today and till 21 June on Elder Abuse issues. Please call us with your question, and we will have a lawyer call you back on the same day.

We are also happy to discuss elder abuse, powers of attorney, enduring guardianship, and Advance Health Care Directives with community groups throughout the year.

Elder Abuse can be Emotional, Financial, Sexual, Physical, or Neglect. It is similar to domestic violence, although the risk factors and perpetrators of the abuse are less likely to live with the victim. The common risk factors are a reliance or dependence on the abuser, or where the victim is particularly trusting of the perpetrator. Some of this is criminal, but not much. It is difficult to establish crime where a person has been the victim of financial abuse. The cost of civil litigation is also a barrier to justice.

For many victims it’s less important to get the money back (or compensation) and more important to make sure it stops. Now.

It’s for this reason that Change Legal will provide first advice free, and fast.

Elder abuse can be stopped quickly. This can be through a phone call, revoking a power of attorney, applying for an AVO,  or simply taking control of one’s own own decision making.


So tomorrow, on 15 June, wear Purple for Elder Abuse Awareness.

If you would like to read some more about Elder Abuse, here is some more information.

TheHoopla: Put on Your Purple Cardie

NSW Elder Abuse Helpline

Prof Colleen Cartwright talking to ABC Radio

Looking for more information? Please feel free to ask us about your specific issue.

Welcome to Change Legal!

Change Legal is a brand new legal practice launching on 5 June 2013, specialising in Domestic Violence and Elder Abuse. We are the first Sydney firm to launch specifically to specialise in these areas that together can be described as domestic abuse. 

We have a strong community focus. The practice builds on a decade of experience in community legal centres and the critically important work that these service do.

Change Legal fills a gap in the legal profession – advocates who can take a person who has been systemically and psychologically beaten down and give them the best possible chance to come out of the legal system a winner, all while being accessible and affordable for people in crisis. 

We are also committed to the prevention of elder abuse in the community and giving ageing Australians control over decisions that affect them. We’re committed to providing services in an affordable way, and are committed to working closely with services in the community to ensure that our practice is accessible and affordable for people in crisis. Our experience working in community legal services means that we can point you to a free services that can support you, provide free initial advice, or come up with an affordable plan to help you through the legal system.