Abstract
Regulating ADs requires balancing between competing interests of the state in protecting life and respecting the individual’s right to make anticipatory treatment preferences. The more common regulatory approach among the jurisdictions discussed is the introduction of formal requirements as part of the condition for an AD to be valid and applicable. Some of the cases discussed have shown that compliance with formal requirements was essential in order for an AD to be upheld. I examine these formalities below, their advantages and drawbacks, alternative options and consider whether such formalities should be implemented.
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Notes
- 1.
British Medical Association “Advance Decisions and Proxy Decision-making” in Medical Treatment and Research: Guidance from the BMA’s Medical Ethics Department (BMA, 2007) at 6.
- 2.
Ibid.
- 3.
Re D [2012] EWHC 885 (COP).
- 4.
See NZMA Position Statement on Advance Directives at [11]; General Medical Council (2018) “Personal beliefs and medical practice”. https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/personal-beliefs-and-medical-practice/personal-beliefs-and-medical-practice#paragraph-24; British Medical Association “Advance Decisions and Proxy Decision-making” in Medical Treatment and Research: Guidance from the BMA’s Medical Ethics Department (BMA, 2007); Compassion in Dying “Making and Implementing Advance Decisions: A Toolkit For Healthcare Professionals” (September 2015 London). https://compassionindying.org.uk/wp/wp-content/uploads/2015/09/CiD_HeathcareProfessionalsToolkit_A4_WEB.pdf. Accessed 2 July 2018; Jere Odell, Rahul Abhyankar, Amber Malcolm and Avril Rua “End-of-life care. Conscientious objection in the healing professions: a readers’ guide to the ethical and social issues” (May 31, 2014).
- 5.
See for example, in some Australian AD laws: Advance Care Directives Act 2013 (SA), s 36(3), Powers of Attorney Act 1998 (Qld), s 103(2).
- 6.
Mary Donnelly, ‘Legislative Comment: The Assisted Decision-Making (Capacity) Act 2015: implications for healthcare decision-making.’ 2016 22(2) MLJI 65.
- 7.
Ibid.
- 8.
Ibid.
- 9.
Terry Carney & Fleur Beaupert, ‘Public and Private Bricolage—Challenges Balancing Law, Services & Civil Society in Advancing CRPD Supported Decision Making’ 2013 36(1) UNSW Law Journal 175–201.
- 10.
Ibid., referring to the examples of Canada and Australia.
- 11.
Other examples include the Advance Care Directives Act 2013 (SA), s 11(2) where the failure to complete a mandatory section in the AD will invalidate the AD; in New Zealand in the area of relationship property, the failure to comply with the formalities of contracting out of the equal sharing regime between spouses and partners render the agreement between the parties void: Property (Relationships) Act 1976, s 21F.
- 12.
Lesley Castillo and his colleagues found that execution requirements such as the requirement for written and signed ADs in statutes impeded the effectiveness of ADs in a survey of AD statutes across the states in the US.: Lesley S Castillo and others “Lost in Translation: The Unintended Consequences of Advance Directive Law on Clinical Care” (2011) 154 Ann Intern Med 121 at 123. Likewise, Lindy Willmott has pointed out that the law governing ADs in Queensland restricted the operation and binding effect of ADs: see Lindy Willmott “Advance Directives to Withhold Life-Sustaining Medical Treatment: Eroding Autonomy through Statutory Reform” (2007) 10 Flinders Journal of Law Reform 287 at 289.
- 13.
E Waran, S Wallace and J Dodson-Jauncey, ‘Failing to plan is planning to fail: advance care directives and the Aboriginal people of the Top End’ 2017 206 (9) MJA 377–378 https://doi.org/10.5694/mja16.00843.
- 14.
Ibid.
- 15.
An example drawn from the area of wills and trust is the “golden rule” of testamentary capacity where a prudent practice is to have the testator’s mental capacity (especially an older testator) assessed by a doctor despite the absence of mental incapacity. See Charles Holbech “Has the golden rule lost its lustre?” (2012) Trusts and Estates Law & Tax Journal 10–13.
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Chan, H.Y. (2018). Regulating Advance Directives. In: Advance Directives: Rethinking Regulation, Autonomy & Healthcare Decision-Making. International Library of Ethics, Law, and the New Medicine, vol 76. Springer, Cham. https://doi.org/10.1007/978-3-030-00976-2_6
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