Legal

by Catherine Logan
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The recent debate surrounding the introduction of advance care planning programs in Austin Health, Melbourne and the tabling in the NSW Parliament and publication by NSW Health last month of guidelines on end-of-life care and use of advance care directives, has largely centred around the use of advance care directives and the conflict which is produced between treating professionals' legal and ethical obligations to the patient when they may have genuine concerns about the advance care directive, for example it being uninformed, made with suicidal intent or having been produced under coercion.

Although legally the precise status of advance care directives in Australian law is unclear, the most likely outcome is that treating professionals faced with such a directive are exposed to legal liability in not following the directive (unless they can produce evidence of their concerns about it) which may produce a clear conflict between what they see to be their moral obligations to the patient (and indeed what they feel is in the patient's best interests at that particular time).

Certainly in the New South Wales jurisdiction there exists a useful and workable mechanism for appointing an enduring guardian to make such decisions for the incompetent patient. It seems that a more workable solution which would be likely to produce less conflict between the moral and legal obligations of treating professionals would be for the patient, whilst still competent, to be encouraged and assisted to appoint such a guardian or guardians and to provide them with a written, non-binding declaration as to what their wishes would be in certain situations, to be used by those persons as guidelines for the exercise of their trust as enduring guardians. Unfortunately the current form of appointment of enduring guardian does not allow for such a declaration to be stated in it " it provides for directions to be given, however the form could be modified if necessary to state that the directions are not intended to be binding on the guardian and are for guidance only.

Australian College of Health Service Executives (NSW Branch)

ACHSE (NSW Branch) Health Law Bulletin

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TO DECLARE OR TO DIRECT END OF LIFE ISSUES ?

This mechanism avoids such criticisms of advance directives as:

1. possibly arising from suicidal intentions,
2. the difficulty of formalising future care in advance owing to the possibility of individuals
changing their minds, changes in their health and changes in the possible treatment which may occur over time and particularly between the time that the advance directive is made and the time it is to be carried out,
3. the possibility that advance directives may be completed without informed deliberation or adequate communication not just with the individual but with others concerned with the individual such as their immediate family,
4. the validity of advance directives where they have arisen in circumstances where the person whilst not incompetent was already acutely ill or anxious and there therefore is some question as to competency or possibly duress or coercion at the time that the advance directive is made,
5. the use of terminology in advance directives not being specific enough to properly act as a legally binding directive to treating professionals, and
6. the concern that the existence of an advance directive would tend to reduce the degree of communication, facilitation and interaction between treating professionals and patients and their immediate families.

The appointment of a guardian or guardians as a priority in advance care planning also has the benefit of defining and limiting the number of persons whose responsibility it will be to make decisions on end of life care, which can be of significant benefit in large families, and limit the potential for disagreement, without bypassing the next of kin altogether, as the advance care directive has the potential to do.

It is submitted that these types of decisions are better made at the appropriate time rather than in advance, even if that means they are made on behalf of, rather than by, the patient. The person or persons who take on that responsibility as enduring guardian or medical power of attorney should have the additional comfort of some written guidance as to the patient's wishes in certain eventualities which could only make their difficult decisions both easier to make and easier to justify to others at the time that they are to be made.

Another more pragmatic legal reason for re-considering programs that emphasise the use of advance care directives is the unsettled nature of their enforceability in law in Australia. It is suggested that an appointment of an enduring guardian or guardians coupled with an appropriately drafted declaration by the patient for the guardian's benefit will assist that person or persons in making the correct decision at the correct time so as to conform with both the patient's wishes and more general considerations of what is best for that patient, and, for treating professionals, presenting them with a reduced possibility of conflict arising between their ethical and legal obligations to the patient at the critical time.

Catherine Logan

Partner, Hunt & Hunt Lawyers >> Insite >> Publications