Advance Care Directives

Powers of Attorney Terminal health conditions or conditions such as dementia, mental illness and acquired brain injury can strip a person of the capacity to make their own medical decisions. An Advance Care Directive can be a valuable resource in that unfortunate situation.

Loss of mental capacity can happen slowly and progressively. Sometimes it occurs suddenly. Either way, once mental capacity has been lost, any personal capacity to influence end of life or advance care medical decisions is also lost. This can have tragic consequences for the patient and for family and friends.

Most people have fixed notions as to how they would like to be medically treated should they suffer this same fate. The ultimate question is whether to die with dignity and comfort or to cling to life irrespective of the consequences.

Although people have fixed notions regarding these matters, for many people the time never seems right to sit down with one's loved ones and make those notions known. If incapacity happens suddenly, a person's personal preferences regarding advance care matters may never be known.

The Medical Treatment Planning and Decisions Act 2016, which came into effect on 12 March 2018, introduced new laws regarding the medical treatment of people who do not have decision-making capacity. The fundamental principle of these new laws is that a person has an opportunity to set out in writing how their medical treatment is to be handled in the event that they subsequently lose the mental capacity to make those decisions for themselves.

Until these new laws came into effect a person had to depend upon others, formerly called "medical attorneys" but now known as "medical treatment decision makers", to make their medical decisions. There is still a place for medical treatment decision makers.

A medical treatment decision maker has authority to make all hard decisions. A medical treatment decision maker has discretionary power to make these decisions either in accordance with specific instructions previously given by the patient or according to what they believed to be in the patient's best interests.

However, in the event of a person suffering a terminal health condition or conditions such as dementia, mental illness or acquired brain injury, hard decisions were not always easy to make. When the time came these appointed persons were not always ready, willing and able to make the decisions the patient had wanted. They had discretion to make decisions, but sometimes delayed or found it difficult to do so.

The new laws allow a person who has mental capacity to make an Advance Care Directive concerning his or her future medical treatment that will be binding during any later period of incapacity when they are unable to make those medical decisions for themselves. An Advance Care Directive will be binding upon the next of kin of a person and any person who has been appointed as a Medical Attorney or Medical Treatment Decision Maker. The Directive will also be binding upon the patient's medical practitioners.

Most commonly, the nature of the binding decisions contained in an Advance Care Directive relate to whether or not the patient is to be treated by life prolonging treatments, CPR (cardiopulmonary resuscitation), chemotherapy and/or radiology.

There are two parts to an Advance Care Directive:

  1. Instructional Directives; and
  2. Values Directives.

Instruction Directives:
What we have said so far relating to binding decisions is relates to instructional directives.

An instructional directive is a binding instruction to consent or to refuse consent to particular kinds of future medical treatment. The directive may relate to chemotherapy, radiotherapy, resuscitation, the stopping or withdrawal of life-prolonging treatments, the non-application of cardiopulmonary resuscitation (CPR) and such other matters as may be specified to suit the wishes of the person.

Careful drafting is essential if an instructional directive in an Advance Care Directive is to operate as a binding instruction. Not only must the instruction be expressly identified in the document as an instructional directive, it must also be clear and certain in its terms.

If the instructional directive is unclear, uncertain, ambiguous, vague, doubtful or tentative or, should it fail to state with precision exactly what was intended, it will not be binding. In that event it will be treated as a values directive.

Values Directives:
A values directive is a non-binding statement in an Advance Care Directive.

A values directive generally relates to a person's preferences and values insofar as those preferences and values relate to how the person would like any medical decisions to be made. As we have said, a values directive, in contrast to an instructional directive, is not binding.

There are many preferences that a person may have that may be expressed as a values directive. For instance:

  1. A values directive may indicate whether a person prefers that medical decisions should be made giving priority for quality of life over the length of life (or vice versa).
  2. A values directive may nominate the person or persons to be consulted (or not to be consulted) regarding healthcare decisions when the person is unable to make those decisions personally.
  3. It may also refer to a person's wishes for such time as the person is approaching death (including any religious or cultural preferences).
  4. It may also express wishes regarding organ donation and funeral arrangements.

An Advance Care Directive may be made by any person providing that the person has decision-making capacity in relation to each statement in the directive and providing also that the person understands the nature and effect of each statement.

The law prescribes a number of formal matters regarding the information that must be included in the document and also as to the witnessing requirements when the document is signed.

At least one of the witnesses to an Advance Care Directive must be a registered medical practitioner. This medical practitioner will be required to certify that the person had decision-making capacity at the time the document was signed and that, when signing the document, the person appeared to do so freely and voluntarily.

The laws prohibit the inclusion in an Advance Care Directive of any statement that is unlawful or would require an unlawful act to be performed. An example of such an unlawful statement would be a directive that purports to require or permit a person to be euthanised. Euthanasia is, under present laws, illegal in Victoria.

Similarly, an Advance Care Directive must not include a statement that would, if given effect, cause a health practitioner to contravene a professional standard or code of conduct.

An Advance Care Directive may be amended or revoked but any such amendment or revocation must be carried out in accordance with the provisions of these laws. Further, any such amendment or revocation must be made at a time when the person retains decision-making capacity.

The form of Advance Care Directive that is offered to clients of Graham Legal is not simply a replica of the form offered by the Office of the Public Advocate. On the contrary, the form of Advance Care Directive that is offered by Graham Legal has been meticulously prepared after consultation with senior medical practitioners experienced in advising and discussing circumstances in which a person may wish to give either or both an instructional directive or a values directive.

The Graham Legal Advance Care Directive is specific as to the particular advance care medical decisions that are to be made and it is specific as to the particular circumstances in which those decisions are to be made. Our practice is to consult with our client before preparing a draft Advance Care Directive that is sent to our client for further consideration and approval. Some clients like to take their draft document to discuss with their medical practitioner before the final document is drawn and signed.

Some clients have special requirements that they would like us to add to the draft document we have drawn. Any such changes must be carefully drawn. It may be these changes may have to be drawn in consultation with the client's medical practitioner.

Once the form of the Advance Care Directive has been finally settled it is necessary for the client to attend upon their medical practitioner. As we have noted earlier, at least one of the witnesses to an Advance Care Directive must be a registered medical practitioner.