Advance Care Directives

Patients are increasingly using advance care directives (ACDs) to set out their healthcare wishes and instructions, should a time come when they are unable to give consent. 

ACDs are not restricted to elderly or terminally ill patients.  They can be used at any point in an adult’s life, and in some circumstances for minors. 

If a patient is unable to consent to health care and they have a valid ACD that applies to the circumstances at hand, this prevails over the decisions of another decision-maker such as a guardian, attorney or ‘person responsible’. 

ACDs can also be used to appoint another decision-maker. 

Doctors who become aware of an ACD when treating a patient who lacks capacity need to assess whether it is clear, unambiguous and remains current, which may require discussion with family and friends. 

Different ACD regimes
There are different regimes for ACDs across Australia, and different terminology for an ACD.  This includes:

• SA, NSW, Victoria[1] and Tasmania – ACD
• Queensland & WA – advance health directive
• ACT – health directive
• NT – advance personal plan.

There is no entirely consistent approach across Australia.  Some states and territories have statutory schemes, and others are governed by the common law.  There are differing requirements of form, witnessing and how it operates. 

MIGA advocates for greater national consistency in ACD regimes, fair and practical obligations for doctors and other health practitioners who have to interpret them, mutual recognition of ACDs made throughout Australia and protections for doctors for good faith actions and conscientious objection. 

What healthcare can an ACD cover?
ACDs can be used to give instructions and guidance about a wide range of healthcare. 

They can give specific instructions about types of treatment a patient wants or does not want. Examples include instructions to cease treatment and continue only palliative care at a certain point, or refusal of certain modes of treatment, such as blood transfusion or CPR. 
 
ACDs can also be used to indicate wishes about what a patient wants from their healthcare, in their quality of life, or things the patient seeks or wishes to avoid.  They may also include information about a patient’s beliefs and values which might assist in working out the healthcare they would want in a certain situation. 
 
Are there obligations to locate an ACD?
Patients will often carry an ACD with them, or a family member or friend may have one, or know where it is. 
An ACD may also be stored on My Health Record.

In Victoria, outside an emergency situation there are obligations to make reasonable efforts to locate an ACD if the patient lacks capacity. 

It is good practice to ascertain whether a patient has an ACD if they lack capacity.   Usually this would be through asking family, friends or next-of-kin. 

How do I know if an ACD is valid?
There are two questions to ask in determining if an ACD is valid, which are:

• Does the ACD cover the clinical circumstances at hand?   It may be silent about certain things, or be too broad or non-specific
• Is the ACD itself still valid?  It may be that considerable time has elapsed since the ACD was made, and the patient’s circumstances have since changed.  There may also be requirements for an ACD form (i.e. documentation and witnessing). 

In NSW and Tasmania, where ACDs are governed by the common law (i.e. Court-made law and not a specific legislative scheme) there are no formal requirements for how an ACD is made.  An ACD is valid if made when the patient had capacity, it was made voluntarily, is clear and unambiguous and applies to the situation at hand. 
In states and territories with statutory ACD regimes, the following requirements apply:
 

South Australia	Person must be over 18, ACD in a prescribed form, signed by the patient and witnessed by another with no connection to the patient
Victoria	ACD include person’s full name, date of birth and address, be in writing, signed by the patient (or by someone they direct) and witnessed by two adults (one being a registered medical practitioner) who certifies the patient had decision-making capacity, understood the nature and effect of the ACD and that they made it freely and voluntarily
Queensland	Person must be over 18, ACD in writing, signed by the patient (or someone they direct), witnessed and signed by a health professional unconnected to the patient who certifies they appeared to have capacity
Western Australia	Person must be over 18, ACD in a prescribed form, signed by the patient (or by someone they direct) and witnessed by two adults (one being a Justice of the Peace or similar)
ACT	ACD in a prescribed form, signed by the patient (or by someone they direct) and by two witnesses
Northern Territory	Person must be over 18, ACD in writing and signed by the patient (or someone they direct) and witnessed by an authorised witness (ie JP, solicitor, health professional) who certifies it was made voluntarily by the patient.

Must an ACD be followed?
Generally an ACD must be followed if it is valid and applies to the circumstances at hand. 

They cannot be used to compel certain healthcare that is inconsistent with good clinical practice, considered futile or which a doctor may conscientiously object.  However, an instruction may still need to be followed even if it appears irrational or wrong to others. 
 
The ACD may contain provisions which are binding and non-binding.  The latter should normally be followed if reasonably practicable to do so, and consent of a substitute decision-maker may be required. 
 
In Queensland, there are certain circumstances which need to be present before an ACD refusing life-sustaining treatment can be followed.  These include no reasonable prospect of regaining consciousness, persistent vegetative state, incurable condition and that life-sustaining treatment will always be required to survive.
 
What if the ACD is made in another part of Australia, or overseas?
In most Australian states and territories, ACDs made elsewhere in Australia may be valid, even though they are made under a different regime.
 
However there are particular limitations in certain states, namely:

• Victoria – common law ACD (including from NSW or Tasmania) is valid for refusal of treatment
• Queensland - common law ACD is not binding – however it may still be appropriate to follow it, particularly if there is consent from a substitute decision-maker.    

 
What if I have concerns about an ACD validity, or its instructions?
Doubts about the validity or clarity of an ACD, whether on its face or from family members, usually requires involvement of health facility administration (given most cases occur in a hospital or nursing home setting) and legal advice. 
 
In some situations, an approach to a Tribunal or a Court may be required to determine if an ACD applies and what should be done. 
 
MIGA’s claims & legal team can advise you about dealing with ACDs when you are uncertain how to proceed. 

Further resources
Australia-wide

• Queensland University of Technology – Advance Directives end-of-life.qut.edu.au
• Advance care planning Australia www.advancecareplanning.org.au/for-health-and-care-workers/legal-requirements

Links current at 20 May 2019