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Drafting an Advance Care Directive 101
An advance care directive (or any other expression of a person’s consent or refusal) doesn’t have to be in writing or even expressed. Both are highly desirable, but it follows from the absence of these constraints that the common law did not require a particular form that an advance direction should take[1].
Suggested form
Nevertheless, the following is recommended:
A1 the advance care directive should be in writing. This is to remove doubt about what is wanted, and to emphasise the authoritative nature of any statement made[2].
A2 the direction should be precise (ie specific). Many examples abound of vague and unsatisfactory expressions. Diane Robinson, a former President of the Guardianship Tribunal, lists the following instances of directions that should be avoided because of the absence of specificity: “I direct my physician to forgo artificial means and heroic measures”, “I do not wish to be a vegetable”, “….cease life sustaining treatment if I have an extreme physical or mental disability”[3]. The statements in Cruzan[4] and the Cairns Hospital case[5] are other instances of wording that should be avoided. In Bentley –v- Maplewood Seniors Care Society[6], the court decided that the instruction “No nourishment or liquids” was unclear in the context of an advance care directive[7].
A3 the direction should be unequivocal.
A4 the direction must be expressed in the negative, as inappropriate treatment cannot be compelled[8].
A5 the maker of the advance care directive should sign the document. This is desirable to authenticate the document as belonging to the maker.
A6 the maker’s signature should be witnessed. This allows evidence of the maker’s mental capacity at the time the document is signed, and the voluntariness of that action, to be available. It gives a will-like solemnity to the process, which is important given the final nature of many directives.
A7 the witnesses should be independent of the maker, in the sense that they have no interest in the financial or legal affairs of the maker during life or upon death.
Suggested contents
Other than it containing negative directions, the common law does not set any parameters on the contents of an advance care directive. The recommended contents are:
B1 a statement as to whom the directive is addressed (and therefore distributed). An important person to include is the person’s enduring guardian. Diane Robinson suggests that family and friends need to be aware of the existence of an advance care directive[9].
B2 an explanation of the circumstances in which the directive applies.
B3 the directive(s) about treatment and care.
Most directives focus on wishes for medical treatment (some of which are listed below) or care (including palliative care, limited care, surgical care, intensive care or other specific care). There is, however, no sensible limit to the things that can be put in the directive provided it is health related. The most common types of directive for medical treatment relate to blood transfusion, cardio pulmonary resuscitation, internal feeding, antibiotics, artificial breathing/mechanical ventilation, hydration, and feeding.
Suggested application
Diane Robinson says: “Rather than referring to specific illnesses or disabilities, it may be advisable to indicate in functional terms what is considered to be acceptable or unacceptable. For example, a person might state “if the time comes when I am unable to communicate or to recognise my family and there is no hope of my recovery, then I would consider that to be an unacceptable disability and I would want only palliative care”[10].
Suggested distribution
Care should be taken with the storage of advance care directives, but copies should be widely distributed. There is wisdom in Diane Robinson’s point: “There is no use in having an advance care directive if at the time of a medical emergency the document is not available or accessible”[11]. McIlwraith and Madden state: “Health carers should treat an advance directive in the same way as they would treat a consent form and ensure its existence is communicated to, or available for, all who may be involved in a person’s care”[12]. Informing as many relevant people as possible is an important part of having an effective advance care directive. It’s all part of “planning in advance”. As Diane Robinson says: “Advance care directives are increasingly regarded as an integral part of decision making in relation to end-of-life medical treatment”[13].
An example of the problem that can arise with insufficient distribution of an advance care directive involves Sherin Qumsieh. She was admitted to Hospital to deliver her first child. She was a Jehovah’s Witness and made clear her wish to not have blood transfusions or blood products. Her husband provided the hospital with an Advance Medical Directive made by Mrs Qumsieh which contained the same direction. When her postoperative state declined Mrs Qumsieh was admitted to ICU. She was anaemic through blood loss. She was under heavy sedation.
Her husband, apparently fearing for her life, approached the Victorian Guardianship and Administration Board, which appointed him as his wife’s guardian. He did not disclose his wife’s Advance Medical Directive. He instructed the hospital to give his wife blood transfusions. When she recovered she unsuccessfully asked the Supreme Court, and then the Court of Appeal, to review the Board’s decision[14].The Board was not liable because they were not aware of her directive.
Suggested reviews
A history of regular reviews of an advance care directive may help resist the argument that an advance care directive, made some years before it is considered for application, no longer represents the maker’s wishes. The NSW Health Guidelines[15] and Benevolent Society recommend an annual review. In Queensland, the official paperwork explaining an Advance Health Directive says “It is wise to review your directive every two years or if your health changes significantly”. Diane Robinson suggests a review every 3 years. Reviews are relevant because there may be changes in a person’s health or changes in the standard medical response to a particular medical condition that may influence a maker’s directive.
Suggestion of a separate document
Sometimes an advance direction about care is included as part of an enduring guardian form. This may create unnecessary risk and it may be a better approach to have the advance care directive as a standalone document but require the enduring guardian to act consistently with it. (This obligation can be included in the appointment of enduring guardian form.) This approach avoids the risk of the advance care directive inadvertently lapsing if the enduring guardian becomes invalid or revoked. It should be remembered that the enduring guardian can be revoked (for instance if the donor marries after the appointment is made (except to the appointee) or the appointee loses mental capacity or dies or resigns) in circumstances where the person making the documents would not usually wish to have any revocation of the advance care directive. Yet that is the result if the documents are linked. Similarly if a guardianship order is made by the Guardianship Division of NCAT.
Darryl Browne[16]
[1] Explicit authority for this statement is found in HE v A Hospital NHS Trust [2003] EWHC 1017 at [33] where Munby J said: “… there are no formal requirements for a valid advance directive: there is no legal requirement as to form” (emphasis in the original). Some State’ s legislation require a form though.
[2] HE v A Hospital NHS Trust [2003] EWHC 1017 at [34], where Munby J said: “The absence of anything in writing goes to the practicality of proof”.
[3] Diane Robinson, Planning for Incapacity and Death: Advance Care Directives and Diane Robinson, Substitute Decision Making – Appointing an Enduring Guardian, Advance Care Directive Planning and Guardianship Orders, 2008, [7].
[4] Cruzan v Missouri Department of Health [1990] USSC 122; 497 US 261 (1989).
[5] Cairns and Hinterland Hospital and Health Service v. JT by JT’s Guardian [2014] QSC 251.
[6] 2014 BCSC 165.
[7] Ibid at [112].
[8] R (Burke) –v- General Medical Council [2006] QB 273, 50-55; Aintree University Hospital NHS Foundation Trust –v- James [2013] 3 WLR 1299, 18.
[9] Diane Robinson, Substitute Decision Making – Appointing an Enduring Guardian, advance Care Directive Planning and Guardianship Orders, 2008 at p17.
[10] Ibid at 16.
[11] Ibid at 18.
[12] Janine McIlwraith and Bill Madden, Health Care and the Law, 2006 at [5.290].
[13] Diane Robinson, Substitute Decision Making – Appointing an Enduring Guardian, advance Care Directive Planning and Guardianship Orders, 2008 at p13.
[14] Qumsieh v Guardianship and Administration Board and Pilgrim (1998) 14 VLR 46, [1998] VSCA 45.
[15] This is available at http://www.health.nsw.gov.au/pubs/2004/pdf/adcaredirectives.pdfh
[16] Darryl Browne is the principal of BROWNE. Linkenbagh Legal Services. He is an Accredited Specialist in Wills and Estates. He is the Chair of the Law Society’s Ethics Committee. He has been a member (2010- 2014, 2016), Chair (2014) and Deputy Chair (2016) of the Elder Law and Succession Committee. He is a Councillor of the Law Society, a member of the Specialist Accreditation Board and the Society’s Property Law Committee, Criminal Law Committee, Disclosure Committee, Fidelity Fund Management Committee and Future Committee and the Working Group on Elder Abuse. He is a member of the Law Council of Australia’s Elder Law and Succession Committee and its Working Group on Elder Abuse. He is a member of the Legal Aid Commission Board and the University of Sydney’s Law Extension Committee. He writes bi-monthly Case Notes on wills and estates for LSJ and occasional other articles for that and other journals. He facilitates the Law Society’s online Wills and Probate Procedures for Solicitors. He designed and presents the Masterclass on Powers of Attorney. He is a member of STEP and SMSF Association. The opinions expressed in this article are his own.
