Advance Directives and the Promotion of Autonomy: a Comparative Australian Statutory Analysis

Legislation regulating advance directives exists in six Australian jurisdictions. In all of these jurisdictions, legislation was enacted to enshrine the common law right of a competent adult to refuse treatment in advance, even if that treatment was required to sustain life. It was thought that enshrining the common law would also enshrine the principle of autonomy on which the common law was based. This article explores whether this is the case by examining the legislative restrictions that are imposed on a competent adult who wishes to complete an advance directive refusing treatment. The article reviews the legislation in all Australian jurisdictions and concludes that, while many of the legislative restrictions can be justified, many cannot as they effectively erode rather than promote the right of a competent adult to refuse treatment.

Advance Directives Refusing Treatment as an Expression of Autonomy: Do the Courts Practise What They Preach?

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate, and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this article is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This article critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this article is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this article.

Law autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.

Advance directives, autonomy and the refusal of life-sustaining medical treatment

As Australian society 1s agemg, individuals are increasingly concerned about managing their future, including making decisions about the medical treatment they may wish to receive or refuse if they lose decision-making capacity. To date, there has been relatively little research into the extent to which legal regulation allows competent adults to make advance refusals of life-sustaining medical treatment that will bind health professionals and others when a decision needs to be made at a future time. This thesis aims to fill this gap in the research by presenting the results of research into the legal regulation of advance directives that refuse life-sustaining medical treatment. In the five papers that comprise this thesis, the law that governs this area is examined, and the ethical principle of autonomy is used to critically evaluate that law. The principal finding of this research is that the current scheme of regulation is ineffective to adequately promote the right of a competent adult to make binding advance directives about refusal of medical treatment. The research concludes that legislation should be enacted to enable individuals to complete an advance directive, only imposing restrictions to the extent that this is necessary to promote individual autonomy. The thesis first examines the principle of autonomy upon which the common law (and some statutory law) is expressed to be based, to determine whether that principle is an appropriate one to underpin regulation. 1 The finding of the research is that autonomy can be justified as an organising principle on a number of grounds: it is consistent with the values of a liberal democracy; over recent decades, it is a principle that has been even more prominent within the discipline of medical ethics; and it is the principle which underpins the legal regulation of a related topic, namely the contemporaneous refusal of medical treatment. Next, the thesis reviews the common law to determine whether it effectively achieves the goal of promoting autonomy by allowing a competent adult to make an advance directive refusing treatment that will operate if he or she later loses decision-making capacity. 2 This research finds that conunon law doctrine, as espoused by the judiciary, prioritises individual choice by recognising valid advance directives that refuse treatment as binding. However, the research also concludes that the common law, as applied by the judiciary in some cases, may not be effective to promote individual autonomy, as there have been a number of circumstances where advance directives that refuse treatment have not been followed. The thesis then examines the statutory regimes in Australia that regulate advance directives, with a focus on the regulation of advance refusals of life-sustaining medical treatment.3 This review commences with an examination ofparliamentary debates to establish why legislation was thought to be necessary. It then provides a detailed review of all of the statutory regimes, the extent to which the legislation regulates the form of advance directives, and the circumstances in which they can be completed, will operate and can be ignored by medical professionals. The research finds that legislation was enacted mainly to clarify the common law and bring a level of certainty to the field. Legislative regimes were thought to provide medical professionals with the assurance that compliance with an advance directive that refuses life-sustaining medical treatment will not expose them to legal sanction. However, the research also finds that the legislation places so many restrictions on when an advance directive refusing treatment can be made, or will operate, that they have not been successful in promoting individual autonomy.

Prevalence and predictors of advance directives in Australia

Background Advance care planning is regarded as integral to better patient outcomes yet little is known about the prevalence of advance directives in Australia. Aims To determine the prevalence of advance directives (ADs) in the Australian population. Methods A national telephone survey about estate and advance planning. Sample was stratified by age (18-45 and >45 years) and quota sampling occurred based on population size in each State and Territory. Results Fourteen percent of the Australian population has an AD. There is State variation with people from South Australia and Queensland more likely to have an AD than people from other states. Will making and particularly completion of a financial enduring power of attorney are associated with higher rates of AD completion. Standard demographic variables were of limited use in predicting whether a person would have an AD. Conclusions Despite efforts to improve uptake of advance care planning (including ADs), barriers remain. One likely trigger for completing an AD and advance care planning is undertaking a wider future planning process (e.g. making a will or financial enduring power of attorney). This presents opportunities to increase advance care planning but steps are needed to ensure that planning which occurs outside the health system is sufficiently informed and supported by health information so that it is useful in the clinical setting. Variations by State could also suggest that redesign of regulatory frameworks (such as a user-friendly and well publicised form backed by statute) may help improve uptake of ADs.

Advance directives and the impact of timing. A qualitative study with Swiss general practitioners.

PRINCIPLES: Advance directives are seen as an important tool for documenting the wishes of patients who are no longer competent to make decisions in regards to their medical care. Due to their nature, approaching the subject of advance directives with a patient can be difficult for both the medical care provider and the patient. This paper focuses on general practitioners' perspectives regarding the timing at which this discussion should take place, as well as the advantages and disadvantages of the different moments. METHODS: In 2013, 23 semi-structured face-to-face interviews were performed with Swiss general practitioners. Interviews were analysed using qualitative content analysis. RESULTS: In our sample, 23 general practitioners provided different options that they felt were appropriate moments: either (a) when the patient is still healthy, (b) when illness becomes predominant, or (c) when a patient has been transferred to a long-term care facility. Furthermore, general practitioners reported uncertainty and discomfort regarding initiating the discussion. CONCLUSION: The distinct approaches, perspectives and rationales show that there is no well-defined or "right" moment. However, participants often associated advance directives with death. This link caused discomfort and uncertainty, which led to hesitation and delay on the part of general practitioners. Therefore we recommend further training on how to professionally initiate a conversation about advance directives. Furthermore, based on our results and experience, we recommend an early approach with healthy patients paired with later regular updates as it seems to be the most effective way to inform patients about their end-of-life care options.

The feasibility of self-report advance directives among elderly patients with cognitive impairment

The central objective of this dissertation was to determine the feasibility of self-completed advance directives (AD) in older persons suffering from mild and moderate stages of dementia. This was accomplished by identifying differences in ability to complete AD among elderly subjects with increasing degrees of dementia and cognitive incompetence. Secondary objectives were to describe and compare advance directives completed by elders and identified proxy decision makers. Secondary objectives were accomplished by measuring the agreement between advance directives completed by proxy and elder, and comparing that agreement across groups defined by the elder's cognitive status. This cross-sectional study employed a structured interview to elicit AD, followed by a similar interview with a proxy decision maker identified by the elder. A stratified sampling scheme recruited elders with normal cognition, mild, and moderate forms of dementia using the Mini Mental-State Exam (MMSE). The Hopkins Competency Assessment Test (HCAT) was used for evaluation of competency to make medical decisions. Analysis was conducted on "between group" (non-demented $\leftrightarrow$ mild dementia $\leftrightarrow$ moderate dementia, and competent $\leftrightarrow$ incompetent) and "within group" (elder $\leftrightarrow$ family member) variation.^ The 118 elderly subjects interviewed were generally male, Caucasian, and of low socioeconomic status. Mean age was 77. Overall, elders preferred a "trial of therapy" regarding AD rather than to "always receive the therapy". No intervention was refused outright more often than it was accepted. A test-retest of elders' AD revealed stable responses. Eleven logic checks measured appropriateness of AD responses independent of preference. No difference was found in logic error rates between elders grouped by MMSE or HCAT. Agreement between proxy and elder responses showed significant dissimilarity, indicating that proxies were not making the same medical decisions as the elders.^ Conclusions based on these data are: (1) Self reporting AD is feasible among elders showing signs of cognitive impairment and they should be given all opportunities to complete advance directives, (2) variation in preferences for advance directives in cognitively impaired elders should not be assumed to be the effects of their impairment alone, (3) proxies do not appear to forego life-prolonging interventions in the face of increasing impairment in their ward, however, their advance directives choices are frequently not those of the elder they represent. ^

Effects of two intervention strategies on the behavior of nurses and nurse students related to advance directives

Advance directives are one mechanism for preserving the rights of individuals to exercise some control over their health care when serious illness may prevent them from direct participation. Nurses, as the health care providers with the closest and most sustained contact with critically ill and dying patients, are positioned to assist patients to plan for future health care needs. Although a majority of nurses favor the concept of advance directives for their patients and for themselves, they have not played a significant role in facilitating advance health care planning with their patients nor implemented advance health care planning for themselves.^ Research has also shown that differing forms of education and counseling increase the completion rates for advance directives in selected populations, mostly the elderly and seriously ill. Not yet developed are effective educational strategies to assist nurses and nurse students to make optimal contributions in assisting their clients' plans for future health care decision-making. This study sought to determine whether specific learning strategies (a) increased the involvement of nurses and nurse students in facilitating advance care planning with patients and (b) increased the percentage of the nurses' and nurse students' own personal advance care planning activities.^ The study compared two learning interventions and two populations, nurses and nurse students. The participants were randomly assigned to one of the two learning interventions, L1 or L2. Participants in L1 received a lecture, discussion and exploration of the forces impacting on advance directive behavior. Participants in L2 received the same intervention components with the additional component of group practice completing advance directives.^ Analysis of the data by chi-square and logistic regression did not support the hypotheses that the practice component would make a difference in the participants' facilitation of advance care planning with patients or in their own personal advance care planning activities. There were significant differences in post-intervention behavior between the nurse and nurse student groups. The nurses in the study did significantly more facilitation of advance care planning with patients and completed significantly more advance care documents than the nurse students post-intervention. However, the nurse students held more post-intervention family discussions than did the nurses. ^

Nurses' knowledge of advance directives and perceived confidence in end-of-life care: a cross-sectional study in five countries

Nurses' knowledge regarding advance directives may affect their administration and completion in end-of-life care. Confidence among nurses is a barrier to the provision of quality end-of-life care. This study investigated nurses' knowledge of advance directives and perceived confidence in end-of-life care, in Hong Kong, Ireland, Israel, Italy and the USA using a cross-sectional descriptive design (n = 1089). In all countries, older nurses and those who had more professional experience felt more confident managing patients' symptoms at end-of-life and more comfortable stopping preventive medications at end-of-life. Nurses in the USA reported that they have more knowledge and experience of advance directives compared with other countries. In addition, they reported the highest levels of confidence and comfort in dealing with end-of-life care. Although legislation for advance directives does not yet exist in Ireland, nurses reported high levels of confidence in end-of-life care.

Advance Care Planning in palliative care : a systematic literature review of the contextual factors influencing its uptake 2008-2012

Background: Advance Care Planning is an iterative process of discussion, decision-making and documentation about end-of-life care. Advance Care Planning is highly relevant in palliative care due to intersecting clinical needs. To enhance the implementation of Advance Care Planning, the contextual factors influencing its uptake need to be better understood. Aim: To identify the contextual factors influencing the uptake of Advance Care Planning in palliative care as published between January 2008 and December 2012. Methods: Databases were systematically searched for studies about Advance Care Planning in palliative care published between January 2008 and December 2012. This yielded 27 eligible studies, which were appraised using National Institute of Health and Care Excellence Quality Appraisal Checklists. Iterative thematic synthesis was used to group results. Results: Factors associated with greater uptake included older age, a college degree, a diagnosis of cancer, greater functional impairment, being white, greater understanding of poor prognosis and receiving or working in specialist palliative care. Barriers included having non-malignant diagnoses, having dependent children, being African American, and uncertainty about Advance Care Planning and its legal status. Individuals’ previous illness experiences, preferences and attitudes also influenced their participation. Conclusion: Factors influencing the uptake of Advance Care Planning in palliative care are complex and multifaceted reflecting the diverse and often competing needs of patients, health professionals, legislature and health systems. Large population-based studies of palliative care patients are required to develop the sound theoretical and empirical foundation needed to improve uptake of Advance Care Planning in this setting.

Les directives anticipées des personnes atteintes d’une démence de type Alzheimer : Comment faire pour bien faire?

Article

A quantitative application of symbolic interactionism to advance directive completion by older adults

This study examined contextual and situational influences on older adults' decision to complete advance directives by means of a conceptual framework derived from symbolic interactionist theory and a cross-sectional, correlational research design. It was hypothesized that completion of advance directives among older adults would be associated with visiting or participating in the care of a terminally ill or permanently incompetent individual sustained by technology. Using a 53-item questionnaire, computer assisted telephone interviews (CATI) were conducted with 398 community dwelling adults between September and October 2003. Respondents were contacted using random-select dialing from a listed sample of 99% of household telephone numbers in one South Florida census tract. Over 90% of households in this tract include an individual age 65 or older. ^ The results revealed that contrary to most reports in the literature a substantial proportion of older adults (82%) had completed advance directives and that the link between older adults and document completion was mainly through attorneys and not mandated agents, health care professionals. Further, more than one third of older adults reported that religion/spirituality was not an important part of their life, suggesting that the recommended practice of offering religious/spiritual counseling to all those approaching death be reexamined. The hypothesis was not supported (p > .05) and is explained by the situational emphasis on the variables rather than on structural influences. In logistic regression analysis, only increasing age (p = .001) and higher education (p = < .001) were significant but explained only 10% of the variance in document completion. ^ Based on the findings, increased interdisciplinary collaboration is suggested with regard to the advance directive agenda. Since attorneys play a key role in document completion, other professions should seek their expertise and collaboration. In addition, the inclusion of a religious/spiritual preference section in all living wills should be considered as an essential part of a holistic and individually appropriate document. Implications for social work education, practice, and advocacy are discussed as well as suggestions for further research. ^

Une analyse des limites inhérentes au nouveau régime des directives médicales anticipées face à l'essor du droit à l'autonomie décisionnelle du patient

Résumé : La Loi concernant les soins de fin de vie ainsi que la mise en place du régime des directives médicales anticipées sont le résultat d’une profonde transformation sociétale, guidée par l’importance grandissante du respect de l’autonomie décisionnelle des personnes et à leur droit à l’autodétermination. Au regard de ce contexte, cet essai décrit en première partie l’état du droit actuel en matière de volontés exprimées de manière anticipée, il analyse les enjeux qui s’y rapportent tout en soulevant les pistes de réflexion déjà amorcées en droit québécois. Il existe effectivement de nombreux outils qui permettent à un individu d’exprimer ses volontés en prévision de son inaptitude, mais les directives médicales anticipées se distinguent d’une façon bien précise : elles possèdent un caractère contraignant qui reconnaît la primauté des volontés relatives aux soins. Or, parallèlement à cela, le régime des directives médicales anticipées impose des limites à ce droit. Dans ce contexte d’essor du droit à l’autonomie, cet essai étudie, en seconde partie, les limites inhérentes au régime des directives médicales anticipées puis propose une analyse critique des défis liés à l’opérationnalisation clinique de ces directives.