Australia: Advance Care Directives: Update

Last Updated: 17 September 2015
Article by Alison Choy Flannigan

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: 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:

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 the relevant principles (whilst acknowledging that what he said will not apply in every conceivable circumstance):

  1. Except in the case of an emergency where it is not practicable to obtain consent, it is at common law a battery to administer medical treatment to a person without the person's consent. There may be a qualification if the treatment is necessary to save the life of a viable unborn child.
  2. Consent may be express or, in some cases, implied; and whether a person consents to medical treatment is a question of fact in each case.
  3. Consent to medical treatment may be given: by the person concerned, if that person is a capable adult; by the person's guardian (under an instrument of appointment of enduring guardian, if in effect; or by a guardian appointed by the Guardianship Tribunal or a court); by the spouse of the person, if the relationship between the person and the spouse is close and continuing and the spouse is not under guardianship; by a person who has the care of the person; or by a close friend or relative of the person.
  4. At common law, next of kin cannot give consent on behalf of the person. However, if they fall into one or other of the categories just listed (and of course they would fall into at least the last) they may do so under the Guardianship Act.
  5. Emergency medical treatment that is reasonably necessary in the particular case may be administered to a person without the person's consent if the person's condition is such that it is not possible to obtain his or her consent, and it is not practicable to obtain the consent of someone else authorised to give it, and if the person has not signified that he or she does not wish the treatment, or treatment of that kind, to be carried out.
  6. A person may make an " advance care directive ": a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive. Again, there may be a qualification if the treatment is necessary to save the life of a viable unborn child.
  7. There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.
  8. If there is genuine and reasonable doubt as to the validity of an advance care directive, or as to whether it applies in the situation at hand, a hospital or medical practitioner should apply promptly to the court for its aid. The hospital or medical practitioner is justified in acting in accordance with the court's determination as to the validity and operation of the advance care directive.
  9. Where there is genuine and reasonable doubt as to the validity or operation of an advance care directive, and the hospital or medical practitioner applies promptly to the court for relief, the hospital or practitioner is justified, by the emergency principle, in administering the treatment in question until the court gives its decision.
  10. It is not necessary, for there to be a valid advance care directive, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment. Nor does it matter that the person's decision is based on religious, social or moral grounds rather than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult.
  11. What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons volition: if, by some means, the person's will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.

The principles apply more broadly than medical treatment provided by hospitals and medical practitioners. The principles apply (including ambulance officers and paramedics) who administer medical treatment. They extend further to other forms of treatment (for example, dental treatment) where, without consent, the treatment would constitute a battery.

Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84

Mr Rossiter was a quadriplegic. Over 20 years he suffered three serious injuries which in combination caused that condition. Mr Rossiter was generally unable to move with limited to foot movement and the ability to wriggle one finger. He was only able to talk through a tracheotomy and was totally dependent upon others for the necessity of life. He was unable to take nutrition or hydration orally. He received nutrition through a percutaneous endoscopic gastrostomy tube.

Mr Rossiter was not terminally ill, nor was he dying. If he continued to provide the services he would live for many years, however, was advised that his condition would not improve and in some respects,for example his eyesight, his condition was deteriorating. He clearly and unequivocally indicated to Brightwater and his doctor that he wished to die on many occasions. He directed Brightwater to discontinue the provision of nutrition and hydration through the PEG on a number of occasions. He was aware that he would die.

His Honour Martin CJ made the following declaration:

  1. If after Mr Rossiter has been given advice by an appropriately qualified medical practitioner as to the consequences which would flow from the cessation of the administration of nutrition and hydration, other than hydration associated with the provision of medication, Mr Rossiter requests that Brightwater cease administering such nutrition and hydration, then Brightwater may not lawfully continue administering nutrition and hydration unless Mr Rossiter revokes that direction, and Brightwater would not be criminally responsible for any consequences to the life or health of Mr Rossiter caused by ceasing to administer such nutrition and hydration to him.
  2. Any person providing palliative care to Mr Rossiter on the terms specified in s 259(1) of the Criminal Code Act 1995 (Cth) would not be criminally responsible for providing that care notwithstanding that the occasion for its provision arises from Mr Rossiter's informed decision to discontinue the treatment necessary to sustain his life.

Australian Capital Territory v JT [2009] ACTSC 105

JT was a 69 year old man of Romanian birth. He severely injured himself falling from his upstairs flat in the belief that he could fly like a dove. He was found to be chronically psychotic suffering from paranoid schizophrenia characterised by religious obsessions.

There was a psychiatric history dating back many years. JT refused food and resisted naso-gastric intubation. The geriatric specialist did not, on balance, recommend artificial feeding largely because of the distress that would be caused to JT in applying the necessary restraints to successfully achieve it. The psychiatrist considered that it might be preferable to adopt a simple palliative approach.

The Court held that JT lacked the capacity to provide informed consent and the "wishes" were the product of delusional and irrational thought, in turn the product of his severe mental illness. It remained a matter of clinical judgement whether any proposed course of treatment would be medically feasible. The declaration sought, that it would be lawful to decline to give JT medical treatment, was refused.

H Ltd v J [2010] SASC 197

J was a resident of an aged care facility. She was born in 1936 and had contracted polio as a child and suffered post-polio syndrome and Type 1 diabetes. She had no use of her right-sided limbs and found her left limbs painful. On 19 January 2010 she wrote to the aged care facility informing it of her intention to end her life by ceasing to take any food, water and insulin.

H Ltd sought declarations as to whether or not it could comply with those directions.

Kourakis J (at para 56) accepted the distinction between suicide and the individual merely speeding "the natural and inevitable part of life known as death" by refusing food and water. It is generally accepted as a matter of community standards, and in law, that a competent adult is not under a duty to take life sustaining medication and that a refusal to do so is therefore not suicide.

It was noted (from para 79) that the Aged Care Act 1997 (Cth) imposed certain obligations upon approved providers and held that an approved provider does not have a responsibility to provide nutrition or hydration where a resident voluntarily and rationally directs the provider not to provide those services and that H Ltd would not breach its responsibilities under the Act by ceasing provision of nutrition, hydration and insulin if J were to give the direction.

The negation of the duties is dependent upon the continuing operation of the direction. If the direction is withdrawn or revoked in whole or in part, the duties will again be enlivened.

The court granted the order that if J provided the direction to H Ltd, whilst J retained her mental competence and did not revoke the direction, then H Ltd was under no duty and has no lawful justification to feed or provide nutrition to J, even if there are to be likely consequences to her life or health, or to hydrate, other than to palliate pain and discomfort or to administer insulin.

X v Sydney Children's Hospital Network (Randwick and Westmead) [2013] NSWCA 320

X was a young man, aged 17 years and 8 months at time of the appeal. He suffered from Hodgkin's disease, a form of cancer. He underwent a number of rounds of chemotherapy, and as a result developed anaemia. In order to deal with the anaemia, he had to have a blood transfusion or cease treatment.

The medical evidence, as at March 2013, was that the tumours had returned and required treatment by chemotherapy at a level which would lead to anaemia and hence an 80% chance of death unless blood products were given.

He and his parents were Jehovah's witness, so refused to consent to the blood transfusion.

The hospital applied to the Equity Division of the Supreme Court of NSW for an order authorising the blood transfusions to X. At first instance Gzell J found that X had capacity to refuse consent but nevertheless made the orders sought.

The appeal was dismissed.

The fact that the court finds that a minor is of sufficient maturity to make decisions about his or her own health does not impose a general limit on the court's parens patriae (protective) jurisdiction.

The Court held (at para 59) that the legal concept of suicide, being the intentional taking of one's own life, is not engaged in a case where medical assistance is refused, even in the knowledge of certain death: McKay v Bergstedt 801 P 2d 617 (1990) at 626, Steffen J of the Nevada Supreme Court disagreeing with statements of Scalia

J in Cruzan v Missouri Department of Health 497 US 261 (1989) at 296-297.

The interest of the state in preserving life is at its highest with respect to children and young persons who are inherently vulnerable, in varying degrees. Physical vulnerability diminishes (usually) with age and is at its height with respect to babies. Intellectual and emotional vulnerability also diminish with age but, as the facts of this case illustrate, may be a function of experience (including but by no means limited to education) as well as age. Vulnerability lies at the heart of the disability identified by legal incapacity

Re JS [2014] NSWSC 302

JS was a 27 year old patient of John Hunter Hospital in Newcastle. JS was 27 years of age.

Since the age of seven, he had been a quadriplegic and was receiving life sustaining treatment. There were increasing episodes of autonomic dysreflexia that could not be controlled despite treatment as an outpatient. These episodes were associated with extreme respiratory disease. All realistic options to control the dysreflexia were being applied.

In the absence of life sustaining treatment, including artificial ventilation JS would certainly die.

The hospital sought from the NSW Supreme Court a declaration that the responsible medical practitioners could lawfully discontinue all life sustaining treatment and medical support measures for JS including by the withdrawal of ventilation.

A further declaration was sought to the effect that the medical services to be provided at the hospital to JS be limited to services ancillary to the discontinuance of all life sustaining treatment, and medical support measures and palliative measures aimed at providing JS with comfort, pain relief and relief of anxiety or torment.

In this case the evidence established that JS had openly discussed with some family members and medical staff the possibility of withdrawal of life sustaining treatment and the in particular the mechanical ventilation. JS had authored a considered document expressing his wishes. He had approached the decision in a deliberate and apparently rational fashion.

The totality of the evidence left the court in no doubt that JS had the capacity to make the decision and the orders were made, provided that the request was not revoked or modified.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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