Refusing advance refusals: advance directives and life-sustaining medical treatment.

• Jurisdiction: Australia
• Date: 01 April 2006
• Author: Willmott, Lindy

[The law recognises the right of a competent adult to make an advance refusal of life-sustaining medical treatment. However, this right is not unqualified and there are circumstances in which a health professional or a court will be permitted to disregard an advance directive. Underpinning this qualified right is the tension between the principles of self-determination or autonomy, and sanctity of life. This article explores the excuses available in Australia to health professionals who do not wish to comply with an advance directive. It compares the common law with those jurisdictions that have enacted legislation, and evaluates and critiques the different excuses available.]

CONTENTS I Introduction A Some Definitions II Advance Directives--Validity at Common Law and under Statute A Common Law Advance Directives B Statutory Advance Directives III Excuses for Noncompliance with Common Law Advance Directives A Change in Circumstances B Uncertainty C Incorrect Information or Assumptions D No Decision Made IV Excuses for Noncompliance with Statutory Advance Directives A Change in Circumstances B Intention To Revoke Advance Directive C Uncertainty D Contrary to Good Medical Practice V A Comparative Analysis of Statutory and Common Law Excuses A Change in Circumstances B Intention To Revoke Advance Directive C Uncertainty D Incorrect Information or Assumption E No Decision Made F Contrary to Good Medical Practice VI Judicial Approaches to Proof VII Conclusion VIII Appendix I INTRODUCTION

There has not been an Australian case that has directly considered whether a competent adult has a right to refuse life-sustaining medical treatment. Nevertheless, there seems little doubt in the literature that this right would be recognised as forming part of Australia's common law should the issue ever be tested. (1) Certainly, such a right has been endorsed in other common law jurisdictions, including in the United States, (2) Canada, (3) New Zealand (4) and the United Kingdom. (5) These jurisdictions have also recognised that an adult may make a decision to refuse life-sustaining medical treatment in advance of the medical situation arising. (6) Again, the Australian courts have not yet directly considered whether the recognition of such directives forms part of the common law of this country but it is generally accepted that this is the case. (7)

Some Australian jurisdictions have put the matter beyond doubt by legislating to recognise the right of an adult to refuse treatment in advance. Legislation providing for advance directives has been enacted in the Australian Capital Territory, (8) the Northern Territory, (9) Queensland, (10) South Australia (11) and Victoria. (12) Although the statutes vary significantly in scope and operation, all allow an adult, in certain circumstances, to complete a directive refusing life-sustaining medical treatment at a future time when that adult no longer has capacity to make the decision. Other states are also considering legislative recognition of advance directives. In Western Australia, a current review of the law on medical treatment for the dying is giving consideration to whether the right to make an advance directive should be statutorily enshrined. (13) A Bill that would provide for advance directives has also been recently introduced into the Tasmanian Parliament. (14) In most jurisdictions where advance directives are recognised by statute, provision is also made for the common law to continue to operate, giving rise to a two-tier system. (15)

A failure to follow an advance directive, including one that refuses life-sustaining medical treatment, attracts legal consequences. Providing treatment without consent (16) brings with it the possibility of the health professional facing both criminal and civil liability. (17) Criminal charges of assault or battery (18) may be laid and the adult may also pursue a civil claim for trespass to the person. (19) Some jurisdictions with legislation on the issue also create a separate criminal offence. (20)

However, there are circumstances in which it is appropriate that an advance directive not be followed. Certainly the situation is more complex when a refusal of life-sustaining medical treatment is contained in an advance directive than when given at the time the decision needs to be made. In the latter case, there is scope for a health professional to discuss the issues with the adult and explore any doubts the health professional might have. If relying on an advance directive, there is no such opportunity and difficulties may arise in relation to issues such as what the adult intended their directive to cover or whether it should apply to the particular situation that has arisen.

This article explores the excuses upon which health professionals can rely at common law and under Australian legislation (21) to decline to follow valid advance directives that refuse life-sustaining medical treatment. (22) Part II explores a preliminary point on the issue of validity and what is required by common law and statute. Then, assuming that there is a valid advance directive in existence, Part III considers what excuses a health professional might be able to rely upon in relation to advance directives at common law. The common law has permitted nonadherence to such directives where the adult completing it would not have intended his or her refusal to apply to the circumstances that have actually arisen. (23) Although there is a single test, the different categories of case that might arise are considered separately. Part IV then examines the excuses available in relation to the various statutory provisions for advance directives. (24) Finally comparison is made with the common law and suggestions are advanced in relation to the appropriateness of different statutory excuses.

A Some Definitions

A final point should be made in relation to terminology. For the sake of clarity, a number of standard terms are adopted throughout this article, irrespective of those which may be used in a particular statutory regime, or at common law, for equivalent expressions. 'Advance directive' means instructions given by an adult about health care in advance of loss of capacity, intended to operate after loss of capacity. (25) 'Life-sustaining medical treatment' means treatment that sustains or prolongs the operation of vital bodily functions that are incapable of independent operation. (26) In this article, this includes treatment such as assisted ventilation, cardiopulmonary resuscitation, and artificial hydration and nutrition. 'Health professional' means a person who provides medical treatment to an adult. (27) The term 'excuse' will be used generically to describe both provisions that permit a health professional not to follow an advance directive and those which actually prohibit reliance on such a document. (28) Finally, this article considers advance directives that can be made by an 'adult', that is a person who has reached 18 years.

II ADVANCE DIRECTIVES--VALIDITY AT COMMON LAW AND UNDER STATUTE

The following provides an overview of when a common law advance directive and one made pursuant to statute will be regarded as valid. This is important to consider at the outset because a directive that is not valid is not binding and the later consideration of excuses for health professionals is premised on the existence of an advance directive that is otherwise binding. Limitations on the circumstances under which statutory advance directives refusing life-sustaining medical treatment can operate or be made are also briefly noted in this Part.

A Common Law Advance Directives

For a common law advance directive to be valid, two requirements must be met. (29) First, the adult must have been competent at the time that the direction was given. This means that the adult had capacity to make the decision and was able to communicate the decision in some way. (30) There have been many judicial pronouncements on what is meant by the term 'capacity' and the law is now regarded as settled. (31) Munby J recently summarised the test for capacity in the following way:

Essentially capacity is dependent upon having the ability, whether or not one chooses to use it, to function rationally: having the ability to understand, retain, believe and evaluate (ie, process) and weigh the information which is relevant to the subject matter. (32) Adults are presumed to have the capacity to make a decision about medical treatment. (33) However, particular care must be taken in assessing the adult's capacity where the direction relates to refusal of life-sustaining medical treatment. Because the consequences of such a direction are so grave, the adult's competence must be correspondingly high. (34)

The second requirement for a valid advance directive at common law is that it must have been given free from undue influence. (35) In the well-known English case, Re T, (36) the Court of Appeal held that a woman who was 34 weeks pregnant and who refused a blood transfusion had been subject to the undue influence of her mother, a Jehovah's Witness. (37) It was held that the doctors had therefore been justified in ignoring the woman's refusal and administering the transfusion.

From a legal perspective, legitimate influence must be distinguished from undue influence. As pointed out by Staughton LJ in Re T, an adult's decision regarding treatment is frequently 'influenced' by others, (38) such as the treating doctor, family and friends. However, the law regards influence as 'undue' only if there is 'such a degree of external influence as to persuade the patient to depart from [his or] her own wishes'. (39) When this occurs, an advance directive made by the adult will not be valid. (40)

In contrast to the statutory regimes discussed below, there are no requirements at common law as to formalities, such as the need for the advance directive to be in writing or to be witnessed. (41) Of course...