In Australia you do not have a right to end your own life, but every mentally competent adult has a legal right to accept or refuse medical treatment, even if the refusal of treatment may lead to their death. You can also demand treatment if this is what you want. Once you lose mental capacity others make decisions for you. But who and on what basis?
Whilst you have the capacity to make decisions, you can do two things. Firstly, appoint someone you know and trust to make decisions for you, if and when you can’t do so ourselves. Secondly, direct what medical treatment you do and do not wish to receive when you can no longer decide for yourself.
It’s good planning to do both, but either is better than leaving it to chance and transferring the burden of the decision making to your loved ones. Or worse still, to strangers who have no idea what your wishes and beliefs might be.
To appoint a guardian as an alternate decision maker you must complete a formal Power of Enduring Guardianship (known by different names in different jurisdictions). Each state and territory has its own version of this document and to validly appoint a guardian, you must comply with strict statutory requirements when completing the form.
To provide directions concerning immediate or future medical treatment, however, requires much less formality. Provided you have capacity at the time to give directions (whether at the time of treatment or in writing in advance of treatment being required) you can determine what medical treatment you receive.
There are several terms used to describe the document by which you give directions about medical treatment. They are commonly called ‘Living Wills’ but they are also referred to as ‘Advanced Health Care Directives’ or simply ‘Health Care Directives’. Regardless of how they are described, they all have the same objectives:
to protect your right to refuse unwanted medical treatment
to protect your right to receive desired medical treatment, and
to ensure you receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances.
Usually these documents stipulate treatment limitation preferences, but they may indicate a wish that you want full measures taken to prolong your life, no matter what the treatment. The medical treatment preferences can include, for example, those influenced by religious or other values and beliefs. They can identify living circumstances unacceptable to you arising from applying life-sustaining treatment and direct how far treatment should go when your condition is ‘terminal’, ‘incurable’ or ‘irreversible’.
If you appoint a guardian and you prepare an advanced health care directive, then your guardian is bound to follow the directions set out in this document. In the absence of a health care directive, your guardian must decide what treatment you do or do not receive.
Any medical professional providing treatment contrary to your health care directive is exposed to charges of assault, and claims for negligence or breach of contract in the event that they do not comply with the provisions and requests of these directions.
To find out more about completing a Power of Enduring Guardianship, Living Will, Advanced Health Care Directive or Health Care Directive contact Slater & Gordon on 1800 555 777 or visit slatergordon.com.au.