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Research Report: The legal needs of older people
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The legal needs of older people  ( 2004 )  Cite this report

Ch 5. Health

Advance health care directives



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The legal status of advance health care directives


In NSW advance health care directives are informal mechanisms that are not supported by legislation. Despite this fact, there are ways in which they may have legal force or limited legal effect.

Advance health care directives can be seen as strongly persuasive to health care providers and the Guardianship Tribunal, particularly if they are consistent and up to date.8 Advance health care directives are a useful addition to the Enduring Guardian provisions. Where the directives form part of the appointment of an enduring guardian, they can act as instructions to the guardian on how to exercise his or her functions, and serve as limitations on the guardian’s authority, especially where they are quite specific. However, where advance health care directives conflict with enduring guardianship, the guardian is able to make decisions contrary to the directives.9

Advance health care directives can be binding at common law, if they fulfil the criteria of specificity and competence at the time of writing. Medical practice also appears to support the advance directives of patients who can no longer make decisions about their health, as outlined in the NSW Department of Health’s guidelines in relation to management of dying patients:

    the contents of an advance directive, where made, should also be taken into account.10

The need to have advance health care directives recognised by legislation has been an issue that has attracted much discussion. The Director of the Benevolent Society’s Centre on Ageing expressed the view that the informal nature of advance directives, supported by the common law and medical practice, was preferable to legislative recognition. The concern was that under legislation there would be the risk that an advance directive not completed on a specific form in the prescribed manner would remain ineffective and inflexible.11 In addition, one consultation suggested that:

    The effectiveness of doing advance health care planning and using advance health care directives are really not about whether it is nailed down in legislation—the authority of advance health care directives is that they really match what the older person would want, and that hinges on having the right discussion.12

At the same time, there are concerns about the lack of legal safeguards in NSW for medical practitioners when there is an advance health care directive that is in conflict with the practitioner’s duty of care under the law of negligence.13 If the current informal arrangement with advance directives is to continue, it would assist if there are clearer rules and thorough guidelines in relation to the legal and ethical duties of medical practitioners and health professionals when confronted with advance directives.

The common arguments supporting the introduction of legislation dealing with advance health care directives are that:

  • legislation would clarify the legal ramifications and liabilities for stakeholders such as government departments, hospitals and doctors
  • legislation makes people more confident that doctors will carry out their advance health care directives
  • an increasing number of older people are living alone14 and have no appropriate family member or friend who they would like to ask to take on the role of carrying out their wishes when they are no longer able to do so
  • it would make it easier for people to update their advance health care directive regularly.15

Arguments against such legislation include that:
  • the current situation is working well and legislation will create inflexibility
  • circumstances may change over time, and it is difficult for a person making the directive to accurately predict the exact circumstances that might occur
  • doctors would have to act in accordance with advance health care directives and could be sued for failing to do so.16


Consultation with John Le Breton, Director, and Amanda Curtin, Office of the Public Guardian, Sydney, 24 September 2002.
Consultation with John Le Breton, Director, and Amanda Curtin, Office of the Public Guardian, Sydney, 24 September 2002.
NSW Department of Health, Dying With Dignity: Interim Guidelines in Management, NSW Health, North Sydney, 1993.
Consultation with Barbara Squires, Director of the Centre on Ageing, Benevolent Society, and President, Australian Association of Gerontology, Sydney, 10 October 2002.
Consultation with Julie Letts, NSW Department of Health, 19 August 2003.
Consultation with Sue Field, Elder Law Centre, University of Western Sydney, 27 August 2002.
Australian Institute of Health and Welfare, Older Australians at a Glance, p. 6.
Hampshire, A., Squires, B., Wall, S. and Thompson, R., Taking Charge: Making Decisions for Later Life, NSW Committee on Ageing, Sydney, 1999, p. 36.
Hampshire, A., Squires, B., Wall, S. and Thompson, R., Taking Charge: Making Decisions for Later Life, NSW Committee on Ageing, Sydney, 1999, p. 36.

 Consultation with John Le Breton, Director, and Amanda Curtin, Office of the Public Guardian, Sydney, 24 September 2002.
 Consultation with John Le Breton, Director, and Amanda Curtin, Office of the Public Guardian, Sydney, 24 September 2002.
10  NSW Department of Health, Dying With Dignity: Interim Guidelines in Management, NSW Health, North Sydney, 1993.
11  Consultation with Barbara Squires, Director of the Centre on Ageing, Benevolent Society, and President, Australian Association of Gerontology, Sydney, 10 October 2002.
12  Consultation with Julie Letts, NSW Department of Health, 19 August 2003.
13  Consultation with Sue Field, Elder Law Centre, University of Western Sydney, 27 August 2002.
14  Australian Institute of Health and Welfare, Older Australians at a Glance, p. 6.
15  Hampshire, A., Squires, B., Wall, S. and Thompson, R., Taking Charge: Making Decisions for Later Life, NSW Committee on Ageing, Sydney, 1999, p. 36.
16  Hampshire, A., Squires, B., Wall, S. and Thompson, R., Taking Charge: Making Decisions for Later Life, NSW Committee on Ageing, Sydney, 1999, p. 36.


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Ellison, S, Schetzer, L, Mullins, Perry, J & Wong, K 2004, The legal needs of older people in NSW, Law and Justice Foundation of NSW, Sydney