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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 way that you can give guidance to health care professionals about how you want to be treated in the future if you lose capacity to make healthcare decisions due to age, illness and/or injury.

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

In an emergency situation, your family may find it difficult to work out what you would want or what treatment is best for you. Advance Care Directives provide clarity when you are not able to tell them yourself. Advanced Care Directives are often very important in end of life decision-making. NSW Health has developed an Information Booklet that includes an Advanced Care Directive form that you can complete at the back.

To find out more about how to make an Advance Care Directive, click here.

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

There is no set way to make an Advance Care 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 about what you specifically want to happen if you become unwell).
  • Have it witnessed by someone, preferably by someone who is not referred to in the Advance Care Directive.
  • Keep the Advance Care Directive in a safe place and give a copy to relatives, friends, carers and to any person who has been involved in your treatment. You could even keep a card in your wallet with all the information of your Advanced Care Directive on it.

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

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

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

You can change or revoke (cancel) your Advance Care Directive at any time while you still have legal capacity. You should let relatives, friends, carers and to any person who has been involved in your treatment know that you have changed or revoked it.

Dying with Dignity NSW provide some details and information about Advance Care Directives, and a template for 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 to this information.

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 is included in an Advance Care Directive?

Advanced Care Directives can include information about:

  • where you do or do not wish to be cared for
  • who you do or do not wish to care for you
  • what types of medical treatments you would or would not like to receive; and
  • your wishes about any aspect of your life.

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.

There is generally no limit to 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.

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.

5F.4: When do Advance Care Directives apply?

If you are unable to communicate with your healthcare professional or make decisions about your treatment, they will refer to your Advanced Care Directive. They will consider whether:

  • you had capacity when you wrote it;
  • whether it has clear and specific details about treatments that you want to accept or refuse; and
  • whether it applies to the situation you are in at the time.

If you have a Guardian or Enduring Guardian, they must also refer to your Advance Care Directive before making medical or health decisions on your behalf.

The Supreme Court have said that a valid Advance Care Directive must be followed, and health care professionals generally have no authority to override a valid Advance Care Directive.

However, there are certain exceptions. For example, you cannot avoid the operation of the Guardianship Act 1987 (NSW) or the Mental Health Act 2007 (NSW) 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.

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

You can include in your Advance Care Directive whether or not you want to be treated with particular medication if you become unwell.

You can include in your Advance Care Directive if 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 state 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 Advance Care Directive. They should try to take it into account, but they don’t have to.

It is highly 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. This also is likely to apply to a decision made by the Mental Health Review Tribunal to order that you have ECT, or a decision by NSW Family and Community Services 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 April 3, 2020