SLHD My Wishes
Advance Care Planning

Legal Considerations

If you decide to write an Advance Care Directive (ACD) the following four things are necessary for it to be legally valid and enforceable:

  1. You had capacity when you wrote it.
    Capacity means that you understand the facts and choices involved, can weigh up the consequences and communicate the decision. This assessment is usually best made by your treating doctor and we recommend you discuss this further with them.
  2. It was made voluntarily (a witness to your signature is recommended).
  3. It has clear and specific details about treatments that you would accept or refuse.
  4. It is current and applicable to the situation.

If English is your second language it is very important that you use a professional interpreter when completing a document to ensure you (and/or your Person Responsible) fully understand the medical decisions being made.

It is strongly recommended that your treating doctor be included in your planning discussions and that your documentation is witnessed. Your treating doctor is not obliged to provide non beneficial treatments, however, support and care will be provided to control pain and other symptoms. Healthcare professionals may assist in guiding decisions according to the medical situation at the time.

Does the Healthcare professional have to follow an ACD?

Yes. ACDs are recognised by Common Law in NSW and the NSW Health Department’s guidelines to doctors make it clear that if an ACD meets the four principles set out above, healthcare professionals are legally bound to follow it.

For example, you may say in your ACD that if you are unable to communicate with or recognise your family, and there is no possibility that you will ever improve or recover, you do not want Cardio Pulmonary Resuscitation (CPR) if your heart stops, but you only want to be kept comfortable and free from pain.

However, you cannot use your ACD to demand treatment that your doctors think would be of no benefit to you (e.g. a heart transplant). Also, you cannot ask someone to actively and deliberately end your life. That would be euthanasia, which is illegal in all Australian states and territories, and has nothing to do with ACDs.

Does everyone need an ACD?

No. It is up to you. Everyone is different, and you may not want to think about what may happen to your health in the future. You may prefer to leave such decisions to your partner, a person caring for you, or a relative or close friend who knows you well and you rely on to make decisions for you. Talking over what you want will at least help them to know what you would have wanted if they ever have to make such decisions for you.

Reference: Your Future Starts Now: A Guide for Over 50s” Benevolent Society 2008