Articles and Case Studies

Advance Care Directives and the Law

07 Apr 2014

Dr Sara Bird

by Dr Sara Bird

Judge's gavel

The NSW Supreme Court decision in Hunter and New England Health Service v A confirmed that a valid Advance Care Directive (ACD) must be respected.

Case history

On 1 July 2009, Mr A was admitted to hospital suffering from septic shock. His condition continued to deteriorate and he was transferred to the Intensive Care Unit where he was ventilated and commenced on dialysis.

On 14 July 2009, the hospital became aware of an unsigned document which Mr A had apparently prepared in 2008 indicating that he would refuse dialysis. The document was a pro-forma worksheet prepared for Jehovah’s Witnesses to indicate their attitude to various forms of medical treatment. On the worksheet, Mr A had ticked “I refuse” for dialysis and a number of other medical treatments.

The hospital sought orders from the Court as to whether the document was a valid ACD, and if the hospital would therefore be justified in ceasing dialysis in accordance with the wishes expressed by Mr A in the pro-forma worksheet.

Medico-legal issues

On 15 July 2009, the Court made the declarations as sought by the hospital. In his judgment, Justice McDougall outlined the following principles which applied to ACDs:

  • A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an ACD is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the ACD (though there may be a qualification if the treatment is necessary to save the life of a viable unborn child).
  • There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on that decision.
  • If there is genuine and reasonable doubt as to the validity of an ACD, or as to whether it applies in the situation at hand, a hospital or medical practitioner should apply promptly to the Court for its aid. The hospital or medical practitioner is justified in acting in accordance with the Court’s determination as to the validity and operation of the ACD.
  • Where there is genuine and reasonable doubt as to the validity and operation of an ACD, and the hospital or medical practitioner applies promptly to the Court for relief, the hospital or practitioner is justified, by the “emergency principle”,2 in administering the treatment in question until the Court gives its decision.
  • It is not necessary, for there to be a valid ACD, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment. Nor does it matter that the person’s decision is based on religious, social or moral grounds than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misinterpretation, by a capable adult.


Dr Sara Bird
Manager, Medico-legal and Advisory Services
MDA National

1. Hunter and New England Area Health Service v A [2009] NSWSC 761.
2. The “emergency principle” means emergency medical treatment that is reasonably necessary in the particular case may be administered to a person without the person’s consent if the person’s condition is such that it is not possible to obtain his or her consent, and it is not practicable to obtain the consent of someone else authorised to give it, and if the person has not signified that he or she does not wish the treatment to be carried out.

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