Advance care directives (living wills)
An advance care directive (ACD), or living will, is a way of recording your health and personal care instructions for family members, doctors and healthcare workers if you are unable to make those decisions for yourself. An ACD is useful if you are not confident that the person who will make such decisions for you in such circumstances (the person responsible) will carry out your wishes. It may also assist your enduring guardian. A copy of the document should be provided to your doctor and other healthcare providers, family and friends and enduring guardian if you have appointed one.
In NSW there is no legislation governing ACDs but they are legally binding under common law. The ACD must be written when you have capacity; be clear and specific enough to guide treating doctors; and be as up to date as possible, signed and witnessed. It can then function as an extension of the common law right to determine your own medical treatment.
You cannot direct that your enduring guardian or any other person carry out an unlawful act such as euthanasia.
There are several internet resources for preparing advance care directives, including Advance Care Planning and NSW Health.
Withdrawing or withholding medical treatment
In general, people who are over 18, have capacity and are able to understand their condition and the options for treatment may not be given medical treatment without their consent. They are entitled to adequate information to make an informed choice. The same applies to withholding consent and refusing treatment.
Doctors cannot be forced by relatives of a patient to commence or continue medical treatment that is technically ‘futile’, that is, where it is impossible or extremely unlikely that medical treatment will return the patient to a meaningful quality of life. Treatment can also be withdrawn where it is considered unduly burdensome, or not in the patient’s best interests. The most difficult task where the patient is unconscious or otherwise incompetent is to get good evidence of what the patient
would regard as a ‘meaningful quality of life’.
Where conflict exists between the patient’s family and the patient’s doctors as to whether medical treatment that is apparently ‘futile’ should be continued, the issue can be discussed by the hospital’s clinical ethics committee. If the relatives continue to dispute a decision to withdraw treatment, then relevant doctors should specify that as a reason for not signing the death certificate. This will activate the jurisdiction of the coroner.
‘No CPR’ (cardio-pulmonary resuscitation) orders may be written in consultation with a terminally-ill patient and the patient’s family, in accordance with hospital guidelines, to avoid the indignity of life ending in the pressure of an emergency attempt at resuscitation.
If a person wants to donate their organs after their death, it is important that family and friends know this. Donor consent can be registered with the Australian Organ Donor Register or by visiting a Medicare office.
If the person dies in hospital and certain conditions are met, their family may be approached for consent to organ donation. The Human Tissue Act 1983 (NSW), section 33 states that a person has died when:
- all function of the brain of the person has irreversibly ceased
- circulation of blood in the body has irreversibly ceased.
If, after reasonable inquiries, a deceased person can be shown to have agreed to organ donation during his or her life, then written authorisation can be given by the hospital, or the next of kin, for removal of such tissue. This will not apply if the coroner needs to hold an inquest.
If the deceased person’s views are not known, it is left to the next of kin to decide whether that person should become an organ donor. If the views of the deceased person are not known and no relative can be found, the person may be used as an organ donor.
Where a person is being kept alive by artificial ventilation and circulatory support, authority for organ donation cannot be given unless the patient has been declared brain dead independently by two medical practitioners, each with at least five years’ experience and one of whom is a specialist neurologist or neurosurgeon. The doctors will perform a number of tests to check for absence of brain stem function.
The most practical way of ensuring that your views about organ donation are made known to hospital staff is to always carry a signed written statement in your wallet indicating whether or not you are prepared to be an organ or tissue donor, or to register with the central register.
Solid organs including kidneys, pancreas, heart and lungs, liver, bone marrow and corneas can now be successfully transplanted, but the person must have died in hospital and be on life support. Tissue such as corneas, heart valves, skin and bones can also be donated.
There are certain conditions that must be met before the deceased’s organs can be considered suitable for transplant. Such considerations include the person’s age and medical history.
Bequeathing a body for scientific research is an arrangement that involves a formal written agreement between that person and a university or research institute. Relatives cannot do this after the person’s death. Each medical school has different requirements, so prospective donors should contact the university of their choice to get full details, including a copy of the consent form. Bodies are only accepted if required at the time of death and if certain criteria are met.
A body will not be accepted if it has been subject to:
- a coroner’s inquest
- infectious disease
- a car accident
If a person has decided to bequeath their body for research, they should let their relatives, nursing home or hospital know. The institution should be notified of the death as soon as possible so that staff can prepare to receive the body if they require it. Relatives usually hold a memorial service after the death.
If the body is accepted, the institution arranges a small funeral (which could be four to six years later) at its expense. Relatives are advised.
The legal status of euthanasia, and the issues surrounding the right to die ‘with dignity’ have been the subject of heated public debate in recent years. Although an individual’s right to make decisions about their own health treatment is widely accepted, this does not extend to controlling the way they die.
‘Active euthanasia’ is the term used when death is quickly and deliberately caused — for example, where drugs are deliberately administered to bring about the death of someone suffering a terminal illness or condition. ‘Passive euthanasia’ is the term used when death is caused by withholding or withdrawing treatment that merely sustains life — for example, removing life-support systems from someone in a coma. In the case of passive euthanasia, death is technically from ‘natural causes’.
The law relating to euthanasia in NSW is the Crimes Act 1900, section 18(1). Under this section, murder has been committed if a person causes somebody’s death by acting with ‘reckless indifference’ to human life or with ‘intent to kill’.
Under this law, active euthanasia is perceived as murder. It is debatable whether passive euthanasia, which is regarded as death from natural causes, also constitutes murder. Even when the death is from natural causes, a doctor who withholds or withdraws medical support can still be regarded under the present legislation as the legal cause of death. Section 18(1) states that murder can be due to an omission (that is, failing to take action), so a doctor who allows passive euthanasia may be charged with murder if that action is legally interpreted as an omission.
As an example, an elderly patient admitted to hospital suffering from kidney and heart failure, with no chance of recovery, is treated only with oxygen. While the patient could have been extensively treated in other ways, this would not have saved their life, and placing him/her on oxygen would allow a natural death to take place.
Voluntary Assisted Dying Act 2022
The Parliament of New South Wales passed the Voluntary Assisted Dying Act 2022 (the Act) on 19 May 2022. This Act allows eligible people the choice to access voluntary assisted dying from 28 November 2023.
Information for the community is on the NSW Health website.