Advance Care Directives – do I need one?

01 December 2021

An Advance Care Directive (ACD) allows you to plan for your medical treatment when you do not have the capacity to consent to or refuse medical treatment.

There are two types of ACDs:

  • Instructional; and
  • Values based.

If you have made an instructional ACD, your directives as outlined in that document must be adopted and followed by your Medical Treatment Decision Maker (MTDM), if you have appointed one, and your doctors.

n addition, the Medical Treatment Planning and Decisions Act 2016 (Vic) (the Act) creates obligations for all health practitioners to ensure that the instructions and directives in your ACD are adhered to.

A values based ACD is not binding on your doctors but they generally must be followed. However, if your MTDM can prove your values and instructions have changed since you prepared the ACD then they can deviate from those instructions and directives implementing your current values as they relate to your medical treatment.

We have summarised below some of the pros and cons about ACDs that you should consider when preparing your own ACD.

PROS

  • If you have strong convictions about the type of medical treatment you do, or do not wish to receive in certain circumstances, you should have an instructional ACD in place.
  • If you believe that your next of kin or appointed MTDM may deviate from your wishes, then you will want to execute an instructional ACD.
  • An ACD can be your only voice when you lose capacity if you do not have any family or friends who know your beliefs and wishes in relation to your medical treatment.
  • If quality of life is more important to you than longevity, you may have strong views about life saving treatments. An ACD allows you to refuse life prolonging treatments where your quality of life is comprised.
  • If longevity is more important to you, an ACD can instruct health practitioners to utilise all available medical treatments.
  • You can change your ACD while you still have decision making capacity to take into consideration any changing health issues, values and medical advances. This can be done by completing a new ACD or completing a revocation document.
  • An ‘instructional directive’ is legally binding on health practitioners so you can be confident that your wishes will be respected (subject to
    s51 of the Act).
  • If you are diagnosed with a terminal illness with limited time to live, an ACD gives you control over your future medical treatment.
  • An ACD can be uploaded to your “My Health Record”, this ensures health professionals across Australia will have access to your medical directives when treating you.

CONS

  • While a ‘values directive’ in your ACD allows you to set out your preferences in relation to medical treatment, remember that although preferences expressed as ‘values directives’ can be valuable information for health practitioners, such instructions are not legally binding on health practitioners, although they will need to demonstrate that your circumstances or values have changed.
  • There may be new medical treatments that you were not aware of at the time of making your ACD and you may not be able to make changes to your ACD because you have lost capacity. Despite new or life changing treatments, health practitioners will still have a legal obligation to carry out your instructional directives. A value based directive in those circumstances may be more appropriate.
  • Your instructional directives may operate in circumstances that you did not consider or adequately cover in the wording of your ACD. By way of example, you may have articulated a refusal to be resuscitated, however during a routine procedure you experience complications which results in your heart stopping, the medical staff cannot resuscitate and provide you with life saving treatment because your binding instruction is “do not resuscitate”. It is unlikely that this is what you intended when you prepared your instructional directive, but because the directive is binding the doctors are unable to override your instruction.
  • Take care to cover off on medical procedures or treatment in circumstances where you would expect to make a complete recovery.
  • In accordance with s51 of the Act, health practitioners may not be compelled to give medical treatment that you have consented to if the medical treatment is deemed to be ineffective in your circumstances.

It is also important to note that an ACD cannot authorise Euthanasia as you must have full capacity and undergo a number of evaluations for you to consent to end your life.

To ensure that your ACD accurately reflects your current medical preferences and health status you should review your value directives and instructional directives at least every two years, or as needed. You should also consult with your GP when preparing your ACD as he or she can guide you with appropriate wording and other medical considerations.

Please contact our Wills, Trusts & Estates team if you would like to complete an Advance Care Directive.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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