Right to choose your healthcare

There may be situations where you need to receive medical treatment, but you are unconscious, incapacitated or otherwise unable to provide informed consent. An advance directive can provide direction on the care and treatment you consent to or wish to withdraw your consent to when you are incapable of expressing your wishes. Your healthcare provider will consider your directive as far as is practicable.

Making an advance directive

Your advance directive must be expressed in clear terms. Although your advance directive may be made orally or in writing, a written directive is capable of expressing your wishes in clearer terms.

Advance directives must be made at a time when you have mental capacity and are not unduly influenced by another person. You may have to show that you have received sufficient information from your healthcare provider to understand the implications of your decision, particularly in high-risk situations such as a critical accident. The information you will need to provide to meet these requirements will depend on the circumstances of your care.

Instances when an advance directive is not upheld

At present, advance directives are not legally binding on healthcare providers. There are instances where healthcare providers will not consider your advance directive before providing treatment. For example, a health professional may be obliged to provide compulsory treatment for mental disorders under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

There are also certain forms of treatment that you cannot consent to. For example, your healthcare provider cannot be compelled to assist in your death or to provide treatment that is not clinically available.

If your advance directive does not express your wishes in clear terms, is based on incorrect information or if it is unclear whether it applies to a given circumstance, your healthcare provider may provide treatment if they believe it is in your best interests. In this instance, your healthcare provider must attempt to obtain your consent. This also applies if there is insufficient time to determine whether you have an advance directive, such as in the event of an emergency or an accident. You may be given the appropriate medical care that is required.

Enduring power of attorney

You may have appointed an attorney to make healthcare decisions on your behalf through an enduring power of attorney for personal care and welfare. Your attorney will follow your advance directive if it promotes your welfare and best interests. However, your attorney has a discretion not to have regard to your directive if they consider that it does not promote or protect your welfare and best interests. This will depend on the circumstances of your care, what your attorney believes is in your best interests and whether you have made your wishes clear and known to your attorney. An advance directive can assist an attorney in ascertaining what is in your best interests. Hence, it is critical to discuss this with your attorney to ensure they understand your healthcare preferences.

How can we help?

With more healthcare options available, it is important that you have the best opportunity to decide what healthcare you would like to receive. Although there is no requirement for a lawyer to be involved in the process, we can help to ensure that your advance directive is clear, certain and applicable in most circumstances.

If you are not satisfied with your healthcare, you can file a complaint to the Health and Disability Commissioner.

We recommend discussing your healthcare preferences with your healthcare provider and with your attorney for personal care and welfare to decide whether a written advance directive would provide additional support for your healthcare provider and attorney.