The first National Forum on Advance Care Planning was held in Auckland last week. As much as autonomy is a cornerstone of the New Zealand Health Care system, Advance Care Planning is being taken up rather slowly. Perhaps this is because talking about a patient’s end-of-life expectations and choices can be challenging, but I think there is at least one other reason.
Advance Care Planning involves the recording of a patient’s treatment preferences, future choices in case he/she is no longer able to make decisions. The Code of Rights establishes that a person may use advance directives for this purpose. However, there is a bothersome legal uncertainty around advance directives. As it stands, no-one is quite sure how to tell if an advance directive is valid, and what if an advance directive is not quite in line with established medical practice. There is, perhaps, a certain resistance from health care providers toward advance directives because they are uncomfortable about the ethical and legal issues that may raise.
Unfortunately, advance directives are often depicted as legal instruments with binding force on health care providers, with reference to Right 7(5) of the Code of Rights, which is not helpful. Granted, a legally valid advance directive does have binding force in the same way as a competent person’s informed choice, but in practice it is far less certain how to secure or determine the validity of an advance directive. My suggestion is that it would better to treat advance directions purely as evidence of a person’s wishes regarding treatment decisions. Instead of focusing on validity as a threshold issue, it would be better to apply a holistic view and give advance directives appropriate weight in the decision-making process as evidence of the individual’s personal views and preferences.
The right to refuse medical treatment is a fundamental human right recognised in our uncodified constitution. The protection of our autonomy is deeply embedded into our health system. Yet, there are situations when we, if unwittingly, expect patients to simply give up their right to the freedom of consent to being treated. Worse, being treated with medication that potentially ruins their life.