30/07/2012

Jean lies in a coma in hospital.  She is 78 years of age. Jean is a widow and her doctors tell her three children that they can possibly extend her life for a while with major surgery.  They cannot guarantee the surgery will succeed and they believe that Jean’s quality of life after the surgery will not be good. They ask to speak to Jean’s eldest son who she listed on the hospital form as her next of kin. They want to know whether they should proceed with the treatment or allow Jean to ‘go quietly’.

A few years earlier Jean saw her solicitor and completed an Enduring Guardianship document appointing her eldest son her Enduring Guardian. At the same time she also completed an Advanced Health Care Directive (AHCD) stating she did not want to live in a persistent vegetative state or to have surgery to prolong her life if she were in a coma. All her children are aware of the AHCD and her preferences for not having medical treatment.

AHCD’s are decisions made by persons about what medical treatment they would like in the future, if at some point, they lose the capacity to make these decisions for themselves.

Such directives (sometimes referred to as ‘living wills’) usually record decisions about withholding or withdrawing life-sustaining treatments at the end of life, but they can also contain a person’s detailed preferences and desires about a whole range of treatment matters.

They also need to be communicated when the person is mentally (and therefore legally) competent to do so, and be updated to cover a particular person’s circumstances, as such directives only come into effect when the person loses their decision-making capacity. Obviously, it is preferable to record such decisions in a written document.

NSW does not have current legislation for creating AHCDs. However, the right to make a common law AHCD was recognised in NSW in the case of Hunter and New England Area Health Service v A [2009].

In this case Mr A, a Jehovah’s Witness, was admitted to hospital in a critical state with a decreasing level of consciousness. His condition deteriorated and he was kept alive with mechanical ventilation and dialysis. The hospital became aware of his AHCD and Enduring Guardianship documents written about a year earlier which indicated Mr A would refuse dialysis. As withholding dialysis would likely hasten death, the hospital sought a judicial declaration to determine the validity of his AHCD.

The New South Wales Supreme Court held that the AHCD was valid and Mr A’s decision to refuse medical treatment was binding upon all concerned in his care.

In his reasons the judge stated that if an AHCD "is made by a capable adult, is clear and unambiguous, and extends to the situation at hand, it must be respected." He further reasoned that Mr A had made his decision when he was capable of making it, the AHCD represented his right to decide what should be done to his body in future and his advance refusal of dialysis in particular applied to his situation at this time. Consequently, Mr A’s AHCD was valid and the hospital was justified in complying with Mr A’s wishes of not administering dialysis.

Put simply, an AHCD is simply a consent to or refusal of medical treatment but one made some time before the treatment is indicated.

Coming back to Jean’s situation, her family should let the doctors know that her eldest son is her Enduring Guardian, that she made an AHCD and of her preferences for medical treatment. This would ensure her eldest son doesn’t carry the burden of the decision and would also help alleviate any family disagreements about what Jean would have wanted in this situation.

While the above case of Mr A suggests AHCD’s are binding under the common law in New South Wales in some circumstances, we wait to see if they are given statutory legitimacy in NSW as they have been in other States around Australia.

If you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.