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Chapter 5 Section F: Advance Care Directives

This section explains what an Advance Care Directive is and their status in NSW. In this section, you will find information about:

5F.1: What are Advance Care Directives?

Advance Care Directives are a relatively new way that you can give guidance to health care professionals and health care providers about how you want to be treated in the future if you lose capacity to make healthcare decisions due to age, illness or injury.

It usually includes information about where you do or do not wish to be cared for and by whom, or what treatment you want or do not want. An Advance Care Directive can include your wishes about any aspect of your life. For example, you can include in your Advance Care Directive the name of the person you want to make sure your wishes are carried out, and to make other personal decisions for you. An Advance Care Directive can also say who you would want to have as your guardian if one needs to be appointed (however, to do this it might be better to appoint the person as an enduring guardian).

An Advance Care Directive must be made when you are considered, at law, to have legal capacity to make your own healthcare decisions. They then function as an extension of your common law right to determine your own health care when you lose capacity to make decisions due to age, illness or injury.

Advance Care Directives have limited legal force in NSW. However, there is no NSW law that deals specifically with the making or enforcement of Advance Care Directives. Advance Care Directives are not effective in all circumstances. For example, you cannot avoid the operation of the Guardianship or Mental Health Acts by making an Advanced Care Directive. However, the Advanced Care Directive can be taken into account in any decision-making that is required for you under those Acts.

Advanced Care Directives are often very important in end of life decision-making. NSW Health has developed a web resource for health professionals (that is also very useful for others) called End of Life Decisions, the Law and Clinical Practice. This web resource provides information as to who can make end of life decisions and how they should be made in the NSW context.

Among other issues covered, the web resource looks specifically at the use of Advanced Care Directives in end of life decision-making. You can find this web resource by clicking on this link.

To find out more about how to make an Advance Care Directive, click here to go to the next page of the Manual.

5F.2: How are Advance Care Directives made?

here is no set way to make an Advance Directive. However, the following is useful to keep in mind when you are making yours:

  • Make sure it is clear and easy to understand (an Advance Care Directive will not be enforced if it is vague and non-specific about what you actually want to happen if you become unwell).
  • Have it witnessed by someone, preferably by someone independent who is not referred to in the document.
  • Keep it in a safe place and give a copy to relatives, friends or carers and to any person who has been involved in your treatment.

Advance Care  Directives are most effective if they are made in consultation with your treating health care professionals (that is for example, your GP, case manager and/or your psychiatrist).

If you can afford to get private legal advice about preparing your advance directive, then this should be your next step.

Your Advance Care Directive will not be valid, and can be ignored later, if you do not have capacity when you sign it. To protect against your Advance Care Directive being challenged on this basis, you should ask your GP or psychiatrist to give you a certificate saying you do have capacity at the time you sign your advance directive.

Mind NSW provide some details on information about Advance Care Directives, based on a NSW Health guide for health care professionals about preparing Advance Care Directives, click here to read it. If you are talking to a health care professional about making an Advance Care Directive, you could refer them this guide.

To find out more about getting legal advice, click here.

For more about what you can include in your Advance Care Directive, click here to go to the next page of the Manual .

5F.3: What goes in an Advance Care Directive?

Advance Care Directives often focus on end-of-life decision-making, for example, stating whether or not you want to be resuscitated if you lose consciousness or stop breathing in certain circumstances.

These are the sorts of Advance Care Directives that have been considered by the courts, and the courts have ruled that they should be upheld and enforced.

There is no limit what you can put in an Advance Care Directive. This is partly because, unlike other Australian states, NSW does not have any written laws about Advance Care Directives. The courts in NSW have however held that they are enforceable in certain circumstances.

Remember, if an Advance Care Directive is in any way unclear or not specific, it is unlikely to be enforced!

If you want to include your wishes about mental health treatment and care in an Advance Care Directive, click here to go to the next page of the Manual .

5F.4: Advance Care Directives about mental health issues

You can include in your Advance Care Directive that you want to be treated with particular drugs and not other drugs if you become unwell.

You can include in your Advance Care Directive you don’t want to be treated (or do want to be treated) with particular procedures such as electro-convulsive therapy (ECT).

You can also put in your Advance Care Directive your wishes about life management arrangements if you are admitted to hospital with a mental illness in an acute phase. This could include, for example, details about what you want to happen about the care of your children, the care of your pets, and who in your work place can be told.

If you become an involuntary patient under the Mental Health Act 2007 (NSW), it will be up to your treating team to decide if they will follow your advanced directive. They may take it into account, but they don’t have to.

It is unlikely that the courts would allow an Advance Care Directive to overturn the choices of medication made by a hospital to treat you if you are an involuntary patient, a decision by the Mental Health Review Tribunal to order that you have ECT, or a decision by Community Services NSW or the Children’s Court to place your children in care.

However, putting your wishes in an Advance Care Directive will enable these bodies to better take into account your wishes if you become so unwell that you cannot express them yourself.

Updated January 30, 2015