There are different ways in which you can influence now the decisions that will be made in respect of your health care in the future – when you no longer have capacity. One way is with an Enduring Power of Attorney for Personal Care and Welfare – please see our article Enduring Powers of Attorney. Another is through an Advance Directive.

What is an Advance Directive?

The Health & Disability Commissioner Act 1994 (“HDC Act”) and the Code of Health & Disability Services Consumers Rights (“HDC Code”), now promulgated as regulations, expressly refer to a person’s ability to make health care decisions “in advance” by the use of Advance Directives.

Clause 4 of the HDC Code provides that an Advance Directive means:

“A written or oral directive –

• (a) By which a consumer makes a choice about a possible future health care procedure; and
• (b) That is intended to be effective only when he or she is not competent.”

Typically, an Advance Directive seeks freedom from treatment which prolongs life on terms that are not acceptable to the person concerned. The Advance Directive can set out circumstances or situations in which the person would want treatment withheld or withdrawn, or in other words, what that person regards as acceptable or unacceptable. Should the situation set out arise, the Advance Directive gives the person a measure of autonomy. This contrasts to an Enduring Power of Attorney for Personal Care and Welfare, which essentially allows the donor to appoint an agent to make treatment decisions for the donor once they become incompetent.

Advance Directives can provide an understanding of the person’s life values. Examples include how the person feels about: recovery but with a tube surgically implanted and leading into the stomach for feeding over the long term (“gastronomy tube”); recovery but with partial paralysis; recovery but with memory loss; or recovery in terms of intact breathing functions only, with no possible chance of improvement. These value statements can assist a medical team in deciding what treatment to give or withdraw in order to best respect a patient’s wishes and underlying values, as medical practitioners are obliged to do in accordance with good medical practice. Clear directions can therefore not only achieve the goals of the person, but give assistance to those in whose care the person is placed.

A person cannot demand or refuse anything in an Advance Directive that they could not demand or refuse when competent, for example demanding euthanasia or refusing compulsory treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Will my Advance Directive be followed?

Clause 7(5) of the HDC Code provides: “Every consumer may use an Advance Directive in accordance with the common law”.

Advance Directives have not yet been tested in New Zealand Courts. As such, the law is unclear.

However, it is likely that well established United Kingdom cases provide a reasonable indication of how such documents may be treated in New Zealand Courts (Airedale NHS Trust v Bland (1993) 3 WLR 316; Re T (Adult: Refusal of Treatment) (1992) 3 WLR 782). These cases show that Advance Directives are likely to be applied if the following can be clearly shown:

1. The person was competent to make the Advance Directive at the time it was made;
2. The person was free from undue influence at the time the Advance Directive was made;
3. The person had sufficient information about the consequences of the Advance Directive at the time the Advance Directive was made; and
4. The Advance Directive was intended to apply to the particular facts that have arisen.

The Court in HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam) highlighted the need for clear and convincing proof of the criteria for the initial validity of an Advance Directive, and just as importantly clear and convincing proof for the continuing validity of the Advance Directive. Changes in material circumstances since the Advance Directive was made may render the Advance Directive ineffective. For example, developments in medical technology, changes in a person’s values and/or faith, or changes in a person’s family circumstances may suggest that their original wishes are no longer relevant. It is therefore vital that an Advance Directive be re-evaluated regularly.

New Zealand Medical Council, responsible under the Health Practitioners Competence Assurance Act 2003 for setting standards of clinical competence, cultural competence and ethical conduct for doctors, has published that if doctors have a moral objection to an Advance Directive, they should transfer their responsibility to another doctor.

What can I do to help ensure my Advance Directive will be followed?

• Record your Advance Directive in writing
• Discuss your Advance Directive fully with your family, and with your doctor. The Mental Health Commission recommends that you ask your doctor to sign the Advance Directive to say you are competent, free from undue influence, and are sufficiently informed about your treatment choices
• Give a copy of your Advance Directive to your family and doctor, so it is readily available should the time come to use it
• Regularly re-evaluate the Advance Directive

We have completed a number of Advance Directives, and can help prepare one for you. Please contact Lauren McIvor, Tony Fortune or Katherine McCarthy