An Advance Care Directive (ACD), sometimes called an Advance Health Care Directive, is a document that sets out your wishes in relation to your consent to or refusal of specified medical treatment in the future. The document becomes effective in situations where you are no longer able to make decisions for yourself and is a binding direction, over-riding the wishes of any other person and takes precedence over appointed guardians, spouses or de factos and any other next of kin.
There are many advantages, not the least of which involves discussion about important health care wishes in a non-crisis situation. Although ACDs can be autonomous and private, preparation of one and discussion of its effect can help to improve communication amongst family members and diminish potential guilt and conflict over later decisions. Just imagine having a family member being called into the hospital at early hours of the morning with news of a medical emergency and need for urgent decisions to be made. These times do not often allow for clear thinking and tend to bring out the best and the worst in families.
ACDs also offer people a sense of control during the dying process. Those who have correctly drafted an ACD are able to ensure their health care wishes are communicated in dire medical circumstances, such as when decisions regarding life-support or palliative care need to be made.
This estate planning tool is not just for older people. At any moment you could be injured in a car accident, on a basketball court, in the surf or at the snow. At any time you could suffer a sudden heart attack or stroke. Addressing you are not Superman or Superwoman and arranging an ACD means difficult medical decisions are not left to family or friends.
Case in Focus – Hunter New England Regional Health v A (2009) NSWSC 761
This case involved a hospital patient, a practicing Jehovah’s Witness (Mr A), who had developed renal failure and was being kept alive by kidney dialysis. A document was discovered which was deemed to be an ACD which expressed Mr A’s wish to refuse dialysis due to his religious beliefs. The plaintiff in the proceedings wished to confirm that this document constituted an ACD and that it was correct to comply with its written direction.
The Court held that the document found was an ACD and its written directions were binding on the hospital. This was because the ACD had clear and unambiguous direction which was made at a time Mr A had capacity and was considered a capable adult. The Court went further to explain that not adhering to the direction under a valid ACD will constitute an act of battery. Medical practitioners must seek urgent direction from the Court if they are ever unsure of the validity or existence of an ACD. Pending a decision from the Court, reasonably necessary treatment is allowed to be administered if consent, or refusal to the treatment, is not practicably obtainable.