The law concerning advance care directives in Australia differs from State to State, with some jurisdictions requiring set forms and others relying upon the common law. This article discusses some of the key cases on advance care directives, including a summary of principles.
New South Wales is one of the States that relies upon the common law. Central Coast Local Health District has recently published a useful workbook "Have a Say in Your Healthcare - Advance Care Planning", containing a recommended advance care directive template form for NSW at: http://www.cclhd.health.nsw.gov.au/patientsandvisitors/CarerSupport/cpa/Documents/ ACP_Workbook.pdf.
The Royal Australian College of General Practitioners includes links to advance care directive and enduring guardianship forms for the other jurisdictions at: http://www.racgp.org.au/yourpractice/business/tools/support/acp/
Hunter and New England Area Health Service v A (by his Tutor) (2009) 74 NSWLR 88
A was a patient in a hospital operated by the Hunter and New England Area Health Service. He had been admitted into the emergency department of the hospital on 1 July 2009 suffering from septic shock and respiratory failure and showing a decreased level of consciousness. He was transferred to the ICU the following day, his condition deteriorated and he suffered renal failure. By 14 July 2009, A was being kept alive by mechanical ventilation and kidney dialysis.
A had previously prepared a document a year earlier indicating that he would refuse renal dialysis. A was a Jehovah's witness. He attended a solicitor who had a number of clients who were Jehovah's witness. His solicitor had a practice to explain the risks regarding refusal of blood transfusion. However, had not explained the risk of refusing dialysis. The court reviewed both the documents and the supporting work sheets.
The Area Health Service commenced proceedings seeking a declaration to give effect to the direction. The common law recognises two relevant but in some cases conflicting interests:
A competent adult's right of autonomy or self-determination: the right to control his or her own body; and The interest of the State in protecting and preserving the lives and health of its citizens. It is in general clear that, wherever there is a conflict between a capable adult's exercise of the right of self-determination and the State's interest in preserving life, the right of the individual must prevail.
There is a presumption of capacity, whereby an adult "is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted". In deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:
is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or is unable to use and weigh the information as part of the process of making the decision. The court considered A's decision was a voluntary decision and that A was in law capable of making the decision to refuse dialysis. The court granted the declarations and in so doing set out the following summary of principles:
There does not appear to be a great body of authority in Australia dealing with the relevant principles. (The decision of Ambrose J in Re Bridges [2001] 1 Qd R 574 focused on relevant Queensland legislation, and on its application on the facts of that case.) Accordingly, to assist those faced with advance care decisions, His Honour McDougall J summarisd his understanding of...
