Advance Directives: A view from the office of the Health and Disability Commissioner
From time to time tensions may arise when patients or their families either request a treatment that is deemed to be clinically inappropriate or when they wish to refuse a treatment that is clinically appropriate and which is commensurate with a health professional's duty to provide the necessaries of life.
In light of recent increased interest in the question of Advance Directives, the Office of the Health and Disability Commissioner has provided the following article which describes the current legal situation in New Zealand.
Introduction
The Code of Health and Disability Services Consumers' Rights (the Code) is of particular relevance to advancing illness and end of life care as it recognises key patient rights, such as the right to dignity and independence; the right to services provided in a manner that optimises the patient's quality of care; the right to continuity of care and the right to open and honest discussion about the patient's conditions and options for care. The situations in which life prolonging treatment may be withheld or withdrawn differ according to whether the treatment is, or is not, clinically appropriate.
Treatment clinically appropriate
A provider may decide that non-treatment or withdrawal of treatment is clinically appropriate, for example if the treatment is futile and is causing suffering. If the withdrawal of life prolonging treatment is in keeping with good medical practice, the providers responsible have a lawful excuse for not providing treatment. With regard to a decision to withdraw life support, the High Court has defined 'good medical practice' as requiring:
• A decision in good faith that withdrawal of the life support system was in the best interests of the patient.
• Conformity with prevailing medical standards and with practices, procedures and traditions commanding general approval within the medical profession.
• Consultation with appropriate medical specialists and the medical profession's registered ethical body.
• The fully informed consent of the family.
However, in a later case, the Court of Appeal decided that the consent of the family was not required for the provision of treatment to or the withdrawal of treatment from an incompetent patient. The provider is only required to undertake reasonable consultation and then take into account the views of the family. If the decision raises significant ethical issues, rather than issues of clinical judgment, then Ethics Committee consultation and approval may still be required.
Right 7(4) of the Code provides that if a person is not competent and there is no one entitled to consent on their behalf, the provider may provide services where it is in the best interests of the patient. Reasonable steps must be taken to ascertain the patient's views and the steps taken must be consistent with what the patient would have wanted if they were competent. If the patient's views are not known, the provider may take into account the views of available persons who are interested in the person's welfare. In such a case, following consultation, the decision about provision or withdrawal of treatment is made by the provider in the best interests of the patient.
Advance directives
An advance directive can only be made by a competent person regarding his or her own future treatment. It must be intended to be effective when the person becomes incompetent. An advance directive does not have any effect while the person is competent. Right 7(5) of the Code provides 'every consumer may make an advance directive in accordance with the common law'.
Advance directives enable patients to indicate in advance their objection to or prohibition of the provision of treatment which would otherwise be provided. They may also specify the type of treatment they would wish to undergo should they become incompetent.
Advance directives do not have to be in any particular form and do not have to be in writing. However, advance directives may fail because the intention was unclear. If a valid advance directive exists the directions must be respected as it is legally binding. The right to refuse medical treatment is so fundamental that it is recognised in the New Zealand Bill of Rights Act 1990 (section 11). An advance directive may also be used to express a preference about which of two viable treatment options are to be supplied.
An advance directive refusing future treatment can excuse health professionals from providing treatment which they would otherwise be under a duty to provide. Advance directives can make the provision of such treatment unlawful.
Do Not Resuscitate Orders
A 'Do Not Resuscitate' order (DNR order) is a form of advance directive. A competent person can direct that should they suffer a medical event in which cardiopulmonary resuscitation (CPR) is clinically appropriate, they do not wish such resuscitation to be provided. This is a limited form of advance directive and does not refer to any other life prolonging treatment that might be required.
CPR is not generally clinically appropriate where it is considered futile or medically contraindicated. Resuscitation is a medical issue for the doctor responsible for the patient's care and if resuscitation is not clinically appropriate it should not be provided. If a doctor decides that future resuscitation of the patient is not clinically indicated, the doctor may put a non-resuscitation order in place as part of the patient's overall future care plan. In such situations the doctor should discuss the decision with the patient and/or suitable persons who are interested in the welfare of the patient.
It is important to note that a patient's enduring power of attorney, welfare guardian or family members are not able to refuse clinically indicated CPR or any other clinically indicated treatment.
Conclusion
An advance directive is a written or oral directive made by a competent person about their future care. A DNR order is a type of advance directive. A patient is entitled to refuse treatment and may do so by way of an advance directive made prior to becoming incompetent or a competent patient may refuse consent at the time of treatment. An attorney appointed under enduring power of attorney or a welfare guardian may not refuse consent to standard medical treatment or any procedure intended to save the patient's life or prevent serious damage to their health. Family members who have not been appointed as the patient's enduring power of attorney or welfare guardian do not have the power to consent to, or refuse treatment, although clinicians should consult the family when making decisions under Right 7(4) of the Code.
Dr Cordelia Thomas is the Specialist Senior Legal Advisor for the Office of the Health and Disability Commissioner
Footnotes
1Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 (HC).
2 Shortland v Northland Health Limited [1998] 1 NZLR 433 (CA). 3 Sometimes referred to as a 'living will' this is a written or oral directive by which a person makes a choice about a possible future health care procedure. 4 Code of Rights Clause 4.