A recent decision confirms the right of the individual to make an advance care directive.
A recent decision by the Supreme Court of New South Wales in Hunter and New England Area Health Service v A  NSWSC 761 has set out a useful set of principles for hospitals to follow in relation to advance care directives.
Mr A (a Jehovah's witness) was admitted to the emergency ward of a hospital conducted by Hunter and New England Area Health Service (Service) with septic shock and respiratory failure. Despite all appropriate treatment, Mr A's condition deteriorated and he developed kidney renal failure and was being kept alive by dialysis and mechanical ventilation.
Mr A had prepared a year earlier an advance care directive which indicated that he would refuse dialysis. Approximately two weeks after Mr A's admission, the Service became aware of the advance care directive. The Service sought a declaration from the Court that it was justified in complying with the wishes of Mr A.
In the judgment, Justice McDougall stated that 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.
- The interests of the State in protecting and preserving the lives and health of its citizens.
His Honour stated that it is in general clear that, whenever 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 (leaving aside where the State takes drastic action to deal with a widespread and dangerous threat to the health of its citizens at large).
Justice McDougall stated that the emergency principle does not apply where the patient has given an advance care directive specifying that he or she does not wish to be so treated, and where there is no reasonable basis for doubting the validity and applicability of that directive.
Summary of Principles
The case provides a useful summary of the relevant principles in relation to advance care directives (acknowledging that they will not apply in every circumstance):
- '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.
- 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.
- 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.
- 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 1987 (NSW).
- 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.
- 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 it 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.
- 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 of the decision.
- If there is a 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.
- 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.
- 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 an discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult.
- What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of person's 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 circumstances.'
Justice McDougall held that the hospital was entitled to the declarations sought and the advance care directive was valid and should be followed.
It is imperative for hospitals to treat advance care directives appropriately, remembering that it is at common law a battery to administer medical treatment to a person without the person's consent (except in emergency situations). If a hospital or medical practitioner is in any doubt, they should apply promptly to the court for a declaration.
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