Advance care planning in Australia: what does the law say?
Rachel Z. Carter A , Karen M. Detering A B , William Silvester A and Elizabeth Sutton AA Respecting Patient Choices Program, Austin Health, PO Box 5555, Heidelberg, Vic. 3084, Australia. Email: rachel.z.carter@gmail.com; william.silvester@austin.org.au; elizabeth.sutton@austin.org.au
B Corresponding author. Email: karen.detering@austin.org.au
Australian Health Review 40(4) 405-414 https://doi.org/10.1071/AH15120
Submitted: 24 June 2015 Accepted: 28 August 2015 Published: 16 November 2015
Abstract
Advance care planning (ACP) assists people to plan for their future health and personal care. ACP encourages a person to legally appoint a substitute decision maker (SDM) and to document any specific wishes regarding their future health care in an advance care directive (ACD). Formal documentation of wishes increases the chances that a person’s wishes will be known and followed. However, one of the biggest impediments for doctors following the person’s wishes is uncertainty surrounding the law, which is complicated and varies between the states and territories of Australia. SDM legislation varies regarding who can be appointed, how they are appointed, the powers that an SDM can be given and the decision-making principles that the SDM needs to follow. In circumstances where an SDM has not been appointed, the hierarchy for determining the default SDM for a person also varies between states. Although many states have legislated ACD forms allowing for documentation of a person’s health care wishes, these forms allow for different things to be documented and have different requirements to be valid. The Australian population is mobile, with patients frequently moving between states. The status of ACP documentation created in a state other than the state in which a patient requires treatment also varies, with some states recognising interstate ACDs whereas others do not. This article outlines the legal status of ACDs, within Australian jurisdictions, including the legal validity of interstate ACDs, and argues that uniform laws and documents would assist with awareness and understanding of, and compliance with, ACDs.
References
[1] The Australian Commission of Quality and Safety in Health Care. The national consensus statement: essential elements for safe and high-quality end-of-life care. 2015. Available at: http://www.safetyandquality.gov.au/publications/national-consensus-statement-essential-elements-for-safe-high-quality-end-of-life-care/ [verified 20 June 2015].[2] The Clinical, Technical and Ethical Principal Committee of the Australian Health Ministers’ Advisory Council. A national framework for advance care directives. 2011. Available at: http://www.health.wa.gov.au/advancecareplanning/docs/AdvanceCareDirectives2011.pdf [verified 20 June 2015].
[3] Detering KM, Hancock AD, Reade MC, Silvester W. The impact of advance care planning on end of life care in elderly patients: randomised controlled trial. BMJ 2010; 340 c1345
| The impact of advance care planning on end of life care in elderly patients: randomised controlled trial.Crossref | GoogleScholarGoogle Scholar | 20332506PubMed |
[4] Kirchhoff KT, Hammes BJ, Kehl KA, Briggs LA, Brown RL. Effect of a disease-specific planning intervention on surrogate understanding of patient goals for future medical treatment. J Am Geriatr Soc 2010; 58 1233–40.
| Effect of a disease-specific planning intervention on surrogate understanding of patient goals for future medical treatment.Crossref | GoogleScholarGoogle Scholar | 20649686PubMed |
[5] Brinkman-Stoppelenburg A, Rietjens JA, van der Heide A. The effects of advance care planning on end-of-life care: a systematic review. Palliat Med 2014; 28 1000–25.
| The effects of advance care planning on end-of-life care: a systematic review.Crossref | GoogleScholarGoogle Scholar | 24651708PubMed |
[6] White B, Tilse C, Wilson J, Rosenman L, Strub T, Feeney R, Silvester W. Prevalence and predictors of advance directives in Australia. Intern Med J 2014; 44 975–80.
| Prevalence and predictors of advance directives in Australia.Crossref | GoogleScholarGoogle Scholar | 1:STN:280:DC%2BC2M%2FgtlOitg%3D%3D&md5=bd5abd77407c5b155e587f69b052b088CAS | 25109226PubMed |
[7] Rhee JJ, Zwar NA, Kemp LA. Uptake and implementation of advance care planning in Australia: findings of key informant interviews. Aust Health Rev 2012; 36 98–104.
| Uptake and implementation of advance care planning in Australia: findings of key informant interviews.Crossref | GoogleScholarGoogle Scholar | 22513028PubMed |
[8] Australian Medical Association. Position statement on end of life care and advance care planning. 2014. Available at: http://www.ama.com.au/position-statement/end-life-care-and-advance-care-planning-2014 [verified 20 June 2015].
[9] Medical Board of Australia. Good medical practice: a code of conduct for doctors in Australia. 2014. Available at: http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx [verified 20 June 2015].
[10] Victorian Department of Health. Advance care planning: have the conversation. A strategy for Victorian health services 2014–2018. 2014. Available at: http://www.health.vic.gov.au/acp/strategy.htm [verified 7 September 2015].
[11] NSW Ministry of Health. Advance planning for quality care at end of life: action plan 2013–2018. 2013. Available at: http://www.health.nsw.gov.au/patients/acp/Pages/acp-plan-2013-2018.aspx [verified 20 June 2015].
[12] Advance Care Planning Australia. Advance care planning. 2015. http://advancecareplanning.org.au/advance-care-planning [verified 20 June 2015].
[13] Detering K, Silvester W, Corke C, Milnes S, Fullam R, Lewis V, Renton J. Teaching general practitioners and doctors-in-training to discuss advance care planning: evaluation of a brief multimodality education programme. BMJ Support Palliat Care 2014; 4 313–21.
| Teaching general practitioners and doctors-in-training to discuss advance care planning: evaluation of a brief multimodality education programme.Crossref | GoogleScholarGoogle Scholar | 24844586PubMed |
[14] White B, Wilmott L, Cartwright C, Parker MH, Williams G. Doctors’ knowledge of the law on withholding and withdrawing life-sustaining medical treatment. Med J Aust 2014; 201 229–32.
| Doctors’ knowledge of the law on withholding and withdrawing life-sustaining medical treatment.Crossref | GoogleScholarGoogle Scholar | 25164852PubMed |
[15] Kerridge I, Lowe M, McPhee J. Ethics and law for health professions, 2nd edn. Sydney: The Federation Press; 2005.
[16] Supreme Court of NSW. Hunter and New England Area Health Service v A [2009] NSWSC 761 (6 August 2009). 2009. Available at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2009/761.html?stem=0&synonyms=0&query=advance care directive [verified 7 September 2015].
