Living Wills and Advanced Directives

14 August, 2014 | Carolyn Ranson

In New Zealand a competent person has the right to consent to, or refuse, any medical treatment. But what happens when you are not in a position to communicate your wishes? A competent person will generally communicate directly with their physician as to what treatment they would like before any procedure is undertaken. The physician will endeavour to treat the patient according to these requests.

What happens when an accident or illness leaves a person incapacitated and unable to communicate what treatment they would like?

When this situation arises a physician will be to rely on different methods to ascertain how the person would like to have been treated.

Enduring Power of Attorney for Personal Care and Welfare

If the incapacitated person has a power of attorney for personal care and welfare in place, the physician can hold discussions with the attorney. This attorney will have the ability to make personal care and welfare decisions for the incapacitated person. The attorney cannot legally prohibit the refusal of standard medical treatments to save the person’s life however, even if that was the person’s wishes.

Advanced Directives (Living Wills)

Another method for communicating treatment wishes is through an advanced directive or “Living Will”. An advanced directive can be an oral or written statement setting out the medical treatment a person would like to receive or refuse in the future.

An advanced directive can be made in conjunction with appointing an attorney and may encourage a more definitive decision to be made that better reflects how the incapacitated person would like to have been treated. An advanced directive may have the benefit of removing some of the emotional burden for family members where difficult medical decisions need to be made.

Unlike an attorney, an advanced directive can request the refusal of life saving treatment. An advanced directive could therefore be a request to disconnect a life support system after a physician has concluded there is no reasonable expectation of the person being able to support their own life without it. An advanced directive could be used as an opportunity for a person to express what they would consider to be an intolerable existence.

Does a doctor have to follow an advanced directive?

At present advanced directives are not legally binding on doctors administering treatment. UK case law, which may be followed here in the future, suggests an advanced directive would be binding if it was clearly established, applicable to the circumstances and not trumped by a clear statutory authority.

Although advanced directives are not currently legally enforceable, the right to create an advanced directive is allowed for under the Code of Health and Disability Consumer’s Rights.

The New Zealand Medical Association (NZMA) has recently endorsed a report recommending that a clear advanced directive was persuasive evidence for a decision to withdraw treatment being in line with “good medical practice”. This suggests that a physician will always consider following an advanced directive as far as is practicable.

Improving the chances of an advanced directive being followed

Medical papers on the topic of advanced directives from the NZMA identified that a physician, when deciding whether to follow an advanced directive, should consider:

• What information was available to the person at the time they made the advanced directive in regards to their options, likely side-effects and so on;
• Whether an advanced directive was intended to apply to the specific circumstances; and
• The length of time since the advanced directive was signed.

To give an advanced directive the best chance of being effective it should therefore take the form of a well drafted written statement that is as specific as possible to the individual’s wishes and to potential medical circumstances which may arise. The advanced directive should be regularly updated to allow for any changes in medical treatments, research on medical conditions or changes in attitude of the person themselves. It will also be important to make those close to the individual aware that they have an advanced directive and to make it readily available by giving copies to their family, doctor and solicitor.

Although there is no legal obligation to follow an advanced directive they can provide useful evidence of a person’s wishes and as such any person who has particular views as to what treatment they would like to receive in the future should think about having one drafted.

To discuss drafting a living will please contact solicitor Carolyn Ranson’s personal assistant, Suzanne Sumner by email on suzanne.sumner@smithpartners.co.nz or by phoning 09 837 6840