Advance care planning is not about euthanasia or assisted suicide. It is about respecting a persons' wishes about what is to be done or not done to their own body. I recall, many years ago, before the introduction of the Medical Treatment Act 1988 (Vic), a young man who had sustained horrific injuries resulting with him being left a complete quadriplegic and unable to breathe for himself, was certified as lacking the capacity to make any decisions, under the then Mental Health Act , for his wish to die.
Subsequently the Medical Treatment Act 1988 (Vic) codified the long held common law doctrine of "every human being of adult years and sound mind has the right to determine what shall be done with his own body…". This doctrine was one of the earliest Court decisions by Justice Cardozo in the United States ruling in 1914 which has been followed by Australian Courts.
However, the Medical Treatment Act 1988 (Vic) is limited to the ability of a person of sound mind or who has appointed a substitute decision maker to refuse medical treatment for a current condition. That is to say, a person cannot refuse treatment that may occur in the future. The Medical Treatment Act does however enable you to appoint a substitute decision maker (SDM) that will be able to refuse treatment on your behalf should you lack the capacity to make such a decision yourself.
To that end it is important that the SDM is aware of what your wishes are under various circumstances. Every State and Territory in Australia has legislation that enables a person to appoint a SDM that can determine whether or not a person has or does not have certain treatment. However advance care planning is only codified in South Australia and the Northern Territory. All other states except Tasmania have legislation that deals with a refusal of medical treatment. In my opinion this does not go far enough to protect staff in the aged care sector. Advanced care directives also known as, living wills, advance care planning, long term health goals and the like still come up for scrutiny and legal challenges.
Some of these challenges occur as a result of practitioners and health care providers being uncertain about their responsibilities when following the directions of a competent adult. Over recent years there have been many cases where health authorities or aged care providers have sought declaratory relief in the Courts prior to complying with the express wishes of a resident or their attorneys. In 2009 with Brightwater Care Group v Rossiter, in 2010 with H Ltd v J & Anor, in 2003 with BWV in 2003, to name a few.
In the Australian Ageing Agenda January-February 2016, Ms Jenny Davis of Benetas was quoted as saying that "the current system did not allow enough respect to be paid to people's choices". Ms Davis called for a national policy approach as "a lack of guidelines were leading to stress and uncertainty in decision making and potentially unwanted or unwarranted treatment".
The practical implications of a lack of National Guidelines is that staff in residential aged care facilities and providers of home care around the country face challenges from clients, residents and their families in relation to acting on the express wishes of the resident or having to deal with the conflicting instructions within families.
Some staff are also conflicted between fulfilling what they consider to be their duty of care to provide every treatment possible to preserve life and complying with the express wishes of a competent resident or the attorney of a resident lacking capacity.
Staff are also exposed to conflicting opinions within families as to what is in the best interests of the resident or client and find themselves unsure or unclear as to the expectations placed on them. Staff need to be confident that where there are clear directions made by a competent person that those directions are followed irrespective of the individual opinions of the staff.
Advance care planning is not the only area in which staff experience conflict in providing care.
Staff are at times placed in positions of caring for people who are fulfilling their advance care plans by, for example a resident refusing dialysis or refusing nutrition. Residents who determine that they will die by refusing to participate in treatments or refusing to eat may pose significant challenges for staff who may have difficulties in reconciling what they consider to be their duty and watching someone starving to death or dying as a consequence of refusing dialysis.
Advance care directives may also express that a resident wishes to engage in high risk activities including, for example eating foods that pose a significant risk to the resident. Under such circumstances are staff obliged to provide the food that may potentially cause death because the resident has directed it? The short answer is no.
Neither the provider or the staff are obliged to provide food or fluids that are contraindicated despite the wishes and demands of either the resident, client or their families. If a person has been assessed as requiring a soft diet and refuses to consume a soft diet, the staff would not be in breach of their obligations in not providing food or fluids that they know will cause harm to the resident or client.
In such circumstances, families have been known to either bring in food or assist the client or resident with food that is unsuitable contrary to the advice from staff and their medical practitioner.
Where the provider or staff are in any doubt as to their obligations, they should seek further advice.