A recent UK case highlights the need for healthcare providers to ensure they have regard to advance directives made by their patients. It raises the question - what might happen if the same situation occurred in New Zealand?
Brenda Grant suffered a catastrophic stroke in October 2012 that left her unable to walk, talk or swallow. She had made an advance directive stating she should not be fed nor given treatment to prolong her life in the event she was no longer of sound mind. Unfortunately the advance directive was hidden in the middle of a thick pile of medical notes. Ms Grant was then artificially fed – against her wishes – for 22 months.
The George Eliot Hospital Trust was sued for failing to follow the advance directive. It settled out of court and paid the family £45,000. Other cases involving advance directives have tended to focus on the validity of a known advance directive, rather than for failing to follow one that was valid. Reportedly it is the first UK case involving a negligence claim against a hospital for failure to follow a valid advance directive.
New Zealand law
An advance directive is a written or oral decision made by a person regarding possible future health care, intended to take effect where he or she is not competent.
The current New Zealand law allows for patients to make advance directives. Section 11 of the New Zealand Bill of Rights Act 1990 gives everyone the right to refuse to undergo any medical treatment. Clause 7(5) of the Health and Disability Commissioner’s Code of Patient Rights (the Code) confirms health consumers have the right “to use an advance directive in accordance with the common law”.
In general, to be valid and binding under common law:
- The person must be competent when making the directive. Adults are presumed competent unless they objectively lack mental capacity to make decisions.
- The person must have intended the directive apply to the particular circumstances.
- The decision must be made freely and without undue influence from others.
- There must be evidence that the directive is valid on the balance of probabilities.
Any challenge to the validity of an advance directive can require urgent and specialist legal input, usually requiring urgent relief from the High Court in its parens patriae inherent jurisdiction.
What might happen in New Zealand if Ms Grant were here?
Had a New Zealand healthcare provider failed to follow Ms Grant’s directive, it is unlikely that a healthcare service provider would be held liable in negligence due to the bar on treatment injury under the Accident Compensation Act 2001 (although it is possible that exemplary damages could be available if the failure was sufficiently serious).
It is clear that the reputational and regulatory risks for a healthcare provider would be significant. Certainly the Health and Disability Commissioner would become involved, and it is likely a breach notification and possible proceedings in the Human Rights Review Tribunal could follow (whether by the Commissioner or the patient directly if the Commissioner did not choose to bring proceedings). There are no reported cases where the Commissioner has dealt with this situation.
Where health practitioners were involved in any failure, following a complaint, a professional disciplinary process could unfold against the practitioner.
The Ministry of Health could also conduct an investigation and/or enquiry in its statutory and regulatory function or pursuant to contractual funding arrangements.
Accommodating advance care planning
The Health Quality and Safety Commission is leading a five year advance care planning programme, and has a five year advance care planning strategy that is being implemented. The Health Navigator website also provides some guidance.
In the UK case, the George Eliot Hospital committed to systemic improvements to ensure that advance directives are prominently displayed on the front of a patient’s file. With shared care records and ECRs becoming more prominent in New Zealand, it is important that healthcare providers ensure their systems adequately provide for these to be accessible and prominent to minimise the risk these are “buried” in papers or hidden behind many electronic tabs.
While “do not resuscitate” directives (DNRs) remain common as a basic form of advance directive, the breadth of any advance directive will require flexibility by healthcare providers in accommodating the wishes of their clients within their electronic systems.
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.