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Giving effect to an advance care directive

Substitute Decision-Makers

Principles of decision-making

When making a decision under an advance care directive, a substitute decision-maker must, as far as is reasonably practicable [s 35(1)(a)]:

  • give effect to any instructions or directions expressed in the advance care directive
  • seek to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied)
  • obtain, and have regard to, the wishes of the person who gave the advance care directive (whether such wishes are expressed or implied)
  • endeavour to make the decision in a manner that is consistent with the principles set out in section 10 (principles in relation to advance care directives).

The substitute decision-maker must make the decision that he or she reasonably believes the person who gave the advance care directive would have made in the circumstances [s 35(1)(b)] and must act in good faith and with due diligence [s 35(1)(c)].

A substitute decision-maker should not ignore professional advice or damage any relationships or friendships that the person has. The substitute decision-maker can request services and information from service providers, and has the authority to speak on behalf of the person who appointed them, to ensure that necessary services are provided.

Making decisions when there is more than one substitute decision-maker

If more than one person is appointed as a substitute decision-maker, then the substitute decision-makers may either make decisions together, or separately [s 22], unless the advance care directive says otherwise. An advance care directive may require substitute decision-makers to make decisions together. Alternatively, an advance care directive may say, for example, that one substitute decision-maker can make decisions about certain matters, and another substitute decision-maker can make decisions about other matters.

Notification of decisions

If a substitute decision-maker makes a decision under the advance care directive, he or she must take reasonable steps to notify each other substitute decision-maker appointed under the advance care directive of the decision [s 25].

Health Practitioners

A health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive and who has impaired decision-making capacity in respect of a decision that is required in relation to the health care [s 36(1)]:

  • must comply with a binding provision of the advance care directive that relates to health care of the relevant kind
  • should, as far as is reasonably practicable, comply with a non-binding provision of the advance care directive that relates to health care of the relevant kind
  • must, as far as is reasonably practicable, seek to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied)
  • must endeavour to provide the health care in a manner that is consistent with the principles set out in section 10 (principles in relation to advance care directives).

When an advance care directive may not be followed

A health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that [s 36(2)]:

  • the person who gave the advance care directive did not intend the provision to apply in the particular circumstances, or
  • the provision does not reflect the current wishes of the person who gave the advance care directive.

A health practitioner may refuse to comply with a provision of an advance care directive that specifies the kind of health care that the person who gave the advance care directive wishes to receive if such health care [s 36(3)]:

  • is not consistent with any relevant professional standards, or
  • does not reflect current standards of health care in the State.

However, a health practitioner must still comply with a binding provision even if it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

Similarly, if a provision of an advance care directive relates to the withdrawal or withholding of health care, including the withdrawal or withholding of life-sustaining measures, then a health practitioner cannot refuse to comply with the provision on the basis that it is not consistent with any relevant professional standards or does not reflect current standards of health care in the State [s 36(4)].

A health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds [s 37]. In this case, care of the person should be given to another health practitioner.

Giving effect to an advance care directive  :  Last Revised: Thu Jul 3rd 2014
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