An Advance Health Care Directive (‘AHCD’) describes what treatment you would or would not consent to have in the event of a life threatening illness or injury. The most common instructions relate to circumstances in which you would refuse resuscitation (commonly ‘Do Not Resuscitate’ or ‘DNR’). An Advance Health Care Directive is usually completed with the assistance and advice of your treating doctor, usually your GP.
There is no specific or legislated form to use for an Advance Health Care Directive (AHCD), although you can download a useful example here. They are sometimes called simply ‘Advance Care Directive’ or ‘Living Will’. As there is no legislation on AHCDs, the law supporting their validity is based on consent, or the absence of consent, to receiving treatment.
As a starting point, the minimum requirements are:
That you had capacity when you wrote the document
It has specific details about treatments that you would accept or refuse
It is current (it was written recently, or at least has been reviewed recently without substantial changes)
You were not influenced or pressured by anyone else when you wrote it
The official position of the NSW Government is that an Advance Health Care Directive should be treated as enforceable, and should be respected by medical professionals as a substitute for verbal consent from a patient. The law itself is, of course, more complex.
The precedent for the enforceability of an AHCD is Hunter and New England Area Health Service v A [2009] NSWSC 761. In this case, Mr A had been admitted to hospital in an emergency situation for renal failure, and treated with dialysis. The hospital then became aware that he had written an AHCD stating that he would refuse dialysis. The hospital sought a court declaration as to whether they should be removing him from dialysis given the new information. The court held that if an AHCD is made by a capable adult, is written clearly and unambiguously, and extends to the situation at hand then it has to be respected as a specific refusal of consent to treatment. The court went on to find that in the clear absence of consent (leaving aside the exceptions of emergency treatment), it would be a common law battery to continue to administer treatment.