Advance Care Directive and Living Will are both generic terms used to refer to written statements that set out a person's instructions as to the type and extent of health care that the person wishes to receive. As Advance Care Directive is the term generally preferred by the medical profession and governmental agencies that term will be used here. An Advance Care Directive is usually prepared by a person in anticipation of a loss of capacity to give instructions at the time that a decision must be made regarding medical treatment and sets out the kinds of medical treatment that the person making it would wish to receive or have withheld in the future.
In some states, such as Queensland, South Australia and the Northern Territory1, an Advance Care Directive is a legally binding document. In other states Advance Care Directives may still be valid, and therefore persuasive to some extent, under common law. Because the legal status of Advance Care Directives varies significantly across Australian states, the legal status of Advance Care Directives in two states only, NSW and Victoria, will be discussed here.
Advance Care Directives (or Living Wills) in New South Wales
In NSW an Advance Care Directive may take one of two forms. It may be incorporated in an Appointment of Enduring Guardian or it may be a separate, more informal, document. Where an Advance Care Directive forms part of an Appointment of Enduring Guardian (which is otherwise a document created by legislation under which a person may appoint another to make decisions about lifestyle and medical treatment) the directions as to medical treatment serve as limitations on the guardian's authority, especially where they are quite specific. However, where an Advance Care Directive conflicts with enduring guardianship, the guardian is able to make decisions contrary to the directive2.
The NSW Department of Health (NSW Health) and medical practice generally also appears to support the creation and application of informal Advance Care Directives. NSW Health produces a booklet, available on the web, entitled 'Using Advance Care Directives'. As there is no mandated form for an Advance Care Directive a person wishing to create one in NSW (other than as part of an Appointment of Enduring Guardian) may simply write their wishes down as if writing a letter. Alternatively, and more commonly, a number of organizations have created their own forms and these are available for download from various websites. NSW Health recommends that an Advance Care Directive should be specific (that is it should relate to specific clinical circumstances such as a pre-existing medical condition, future catastrophic injury etc.) and current (eg. made or reviewed annually). The person making the Advance Care Directive must have been competent to make their own health care decisions when the directive was prepared. Ideally, although not essential, the Advance Care Directive should be witnessed. The NSW Health booklet states that these criteria should be satisfied before an Advance Care Directive is considered to have sufficient authority to act on it. The booklet also warns that a failure to comply with an Advance Care Directive that meets the standards discussed in the booklet may be considered an assault and battery under common law and that civil liability may also ensue.3
Accordingly, in NSW, although not mandated by specific legislation, the use of Advance Care Directives is encouraged and such directives appear to be acted upon within the health care system.
Advance Care Directives (or Living Wills) in Victoria
In Victoria, there are three ways for a person to record his or her wishes regarding medical treatment or the person they would wish to make such decisions for them. An Enduring Power of Attorney (Medical Treatment) allows a person to appoint another to make decisions regarding medical treatment after the person concerned has lost the capacity to make such decisions for themselves4. An attorney under this power can only refuse medical treatment if the treatment would cause the person concerned distress or the attorney reasonably believes that the person concerned would consider the treatment unwarranted. Unlike the NSW equivalent, the Victorian Enduring Power of Attorney (Medical Treatment) form does not allow for the inclusion of any specific Advance Care Directives concerning medical treatment to the attorney.
The second way in which a person in Victoria may give Advance Care Directives is by completing a Refusal of Treatment Certificate. A Refusal of Treatment Certificate may be given by a person who has a current medical condition, specifying medical treatment that the person does not want to receive for that medical condition. It is legally binding and medical practitioners must comply with it in treating that illness. A Refusal of Treatment Certificate does not apply to new medical conditions that may arise but an attorney under an Enduring Power of Attorney (Medical Treatment) may sign a Refusal of Treatment Certificate on behalf of a person after that person has lost the capacity to do so.
Finally, under common law a person may record their wishes in an informal Advance Care Directive. As in NSW, there is no legislatively mandated form for use as an Advance Care Directive. A pilot project in advance care planning run at the Austin Hospital, Melbourne, has developed its own form entitled the Statement of Choices form5. The form is designed to inform a person's attorney (medical), family and treating doctors of that person's medical treatment wishes in order to assist them in making decisions when the person concerned can no longer do so. The information sheet produced with the Statement of Choices states that unlike the Refusal of Treatment Certificate, the Statement of Choices is not legally binding.
While there is significant support in the medical industry in Victoria for the use of Advance Care Directives, such directives are not yet receiving the formal governmental endorsement that they receive in NSW or elsewhere. They are, however, still a very useful tool for advising an attorney, a family member or medical practitioner of a person's preferences concerning medical treatment.
Sue Harris is a Senior Associate at Madgwicks and has over 20 years experience in wills and probate. She has a particular interest in Elder Law and over the past eight years Sue has developed expertise in aged care facilities and retirement villages.
1 See Advanced Care Directives on the Australian General Practice Network – www.agpn.com.au (programs, aged care initiative, aged care resource directory, advance care directives)
2 See www.lawfoundation.net.au The legal status of advance health care directives (cites consultation with John Le Breton, Director, and Amanda Curtin, Office of the Public Guardian, Sydney, 24 September 2002)
3 Using Advance Care Directives NSW Department of Health 2004 p. 9
4 See the website of the Office of the Public Advocate www.publicadvocate.vic.gov.au. The Public Advocate produces information sheets on Enduring Powers of Attorney (Medical Treatment) and on the Refusal of Treatment Certificate.
5 See the websites of Alzheimer's Australia at www.alzheimers.org.au and Austin Health at www.respectingpatientchoices.org.au
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.