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The Medical Journal of Australia    eMJA  

Act: Medical Treatment Act 1988 (Vic).

Type of advance directive: Refusal of treatment certificate (RTC). Treatment refused must relate to a current condition ("current condition" is not defined by the Act but presumably refers to a condition that the person has at the time of completing the RTC). The document must be in the form prescribed by the Act ("in the form" is also not defined, but presumably means in language consistent with that used in the Act).

Legally valid if completed voluntarily by a person of sound mind over 18 years who is informed about their condition. Must be signed by a registered medical practitioner and another person who attest to these matters. The patient does not need to sign.

Revoked by patient clearly indicating this wish to another person.

Palliative care: The RTC does not cover refusal of palliative care, which is defined as "the provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or the reasonable provision of food and water".

Physicians’ liability: Under the Act, a doctor who treats a patient despite a valid certificate may commit the statutory offence of medical trespass. This offence would arise in addition to common law claims of battery. Doctors who comply with an RTC are granted immunity from civil claims, criminal charges or professional misconduct proceedings, provided the doctor acts in good faith and with reasonable care.

Act: Consent to Medical Treatment and Palliative Care Act 1995 (SA).

Type of advance directive: An "anticipatory grant" refusing consent to medical treatment. The directive is only effective for patients in the terminal stages of a terminal illness or in a persistent vegetative state, who are not competent to make treatment decisions. "Terminal illness" is defined as "an illness or condition that is likely to result in death" and terminal stage as "the phase of the illness reached when there is no real prospect of recovery or remission of symptoms".

Legally valid if made by a patient of sound mind over the age of 18 years. Must be in the prescribed form, signed by the patient and witnessed by one person, who need not be a medical practitioner.

Revoked by patient orally or in writing (not stipulated in the Act).

Physicians’ liability: Physicians honouring directives under the Act are granted immunity from civil and criminal liability if they act in good faith, without negligence and in accordance with proper standards of professional practice.

Act: Medical Treatment Act 1994 (ACT), based on the Medical Treatment Act 1988 (Vic).

Type of advance directive: "Direction" refusing treatment generally or treatment of a particular kind. Treatment does not have to relate to a current condition, as it does in Victoria.

Legally valid if patients are of sound mind over 18 years. Direction must be in the prescribed form and witnessed by two people, neither of whom needs to be a medical practitioner. It can be signed by the patient or by another person at the patient’s direction, but it does not have to be signed to be valid.

Revoked by patient clearly indicating his or her wish to another person.

Palliative care: Does not cover refusal of palliative care.

Physicians’ liability: A physician honouring a certificate in good faith is protected from civil and criminal liability, as well as claims of professional misconduct.

Act: Powers of Attorney Act 1998 (Qld)

Type of advance directive: "Advance health directives."
Directions to withhold or withdraw life-sustaining measures cannot operate unless:

• the patient has a terminal illness or an incurable condition and is not expected to live more than a year, or is in a persistent vegetative state, or is permanently unconscious, or has a severe illness with no reasonable prospect of being able to live without the continued application of life-sustaining measures; and

• (if the direction concerns artificial hydration or nutrition) the life-sustaining measure would be contrary to good medical practice; and

• the patient has no reasonable prospect of regaining capacity for health matters.

Legally valid if the directive is in the prescribed form, signed by the patient or another person at the patient’s direction and witnessed by two people, one of whom must be a medical practitioner. The witnesses must certify that the patient had the capacity to make the treatment decision at the time of completing the directive.

Revoked by patient indicating his or her wish in writing.

Physicians’ liability: Physicians are protected from criminal and civil liability if they honour the directive in good faith.

Act: Natural Death Act 1988 (NT).

Type of advance directive: "Directives" refusing treatment are only effective in the case of terminal illness, which is defined as "Such an illness, injury or degeneration of mental or physical faculties that death would, if extraordinary measures were not undertaken, be imminent; and from which there is no reasonable prospect of a temporary or permanent recovery, even if extraordinary measures were undertaken". Extraordinary measures are defined in the Act as "medical or surgical measures that prolong life, or are intended to prolong life, by supplanting or maintaining the operation of bodily functions that are temporarily or permanently incapable of independent operation".

Legally valid if made by patients of sound mind who are over 18 years. Must be in the prescribed form, signed by the patient and witnessed by two people, who need not be medical practitioners. The treating doctor cannot be a witness.

Revoked by patient orally or in writing (not stipulated by the Act).

Palliative care: Does not cover refusal of palliative care.

Physicians’ liability: Physicians complying with directives in good faith are protected from criminal and civil liability.

Incompetent patient presents with acute life-threatening illness and an advance directive (AD) refusing treatment

Step 1:

Physician determines whether the AD conforms with State legislative requirements

• The form of the AD is correct
• The AD has the required signatures
• There is no evidence that the AD has been revoked (check with relatives, friends and the patient's GP)

  Victoria - the presenting condition for which treatment is now required is the same as, or has been caused by, the "current condition" as specified on the refusal of treatment certificate (RTC);

  Australian Capital Territory - treatment generally or treatment of a particular kind has been refused. There is no evidence that the patient was incompetent at the time of making the directive (witnesses are not required to attest to competence);

  South Australia - the patient is in the terminal phase of a terminal illness or in a persistent vegetative state;

  Northern Territory - the patient has a terminal illness. There is no evidence that the patient was incompetent at the time of making the directive (witnesses are not required to attest to competence);

  Queensland - the patient is suffering from one of the conditions outlined in Box 1, and the directive is not uncertain or contrary to good medical practice (section 106 of the Powers of Attorney Act 1998).

Step 2:

Comply with the AD (if uncertain proceed to Step 6).

Determine common law validity of the AD.

• No evidence that the person was incompetent when they made the AD.
• AD covers the proposed treatment and the circumstances that have arisen.
  (i) It should not be ambiguous about the nature of the treatment being refused; and
  (ii) It should have been expressed to refuse treatment in the circumstances that have arisen.
• No evidence that the AD was procured by undue influence.

Step 4:

Comply with the AD (the difficulty of a physician's rapidly ascertaining these data in the acute setting is acknowledged) (if uncertain proceed to Step 6).

If ANY of the criteria for Step 3 are not satisfied

Step 5:

Set aside the AD and treat according to the patient's best interests.

Step 6:

Legal advice should be sought if uncertainty exists about Steps 2-5. Faced with a delay in determining the validity of the AD, the physician should commence and continue any treatment deemed to be in the patient's best interests until such time as the AD is determined to be legally valid.

A patient with HIV signs an AD refusing resuscitation or admission to an intensive care unit. The patient has an anaphylactic reaction to a drug early in the disease.

Ethics
If the AD was not intended to apply in this circumstance, withholding treatment would be to fail to respect this person's autonomy and would constitute a serious harm.