Living Wills on Drawing Board

The following article was published in the Law Institute Journal in August 2006.

People with mental illness currently have no right under the law to direct what happens in their life when they become ill, other than to organise a refusal of medical treatment certificate.

The Mental Health Legal Centre approached the Victorian Law Reform Commission to investigate law reform for people who want more say in what happens to them when they become ill, and someone else decides they lack the competency to make their own decisions. The centre has also had pro bono support from Melbourne firm Blake, Dawson and Waldron.

The centre is concerned that people with mental illness do not have enough power in controlling the direction of their lives during episodes of illness and want to introduce “advance directives”, also known as “living wills”, which allow people to record their medical treatment and lifestyle decisions.

The Commission agreed to undertake background research into the issue and law student intern Camilla Pandolfini has completed a paper for the centre.

This paper reviews the law in Victoria and what occurs in other jurisdictions, issues to consider in preparing advance directives, and how such directives could work for employment, medical care and care of children and pets.

How the law stands

Currently, people can appoint a substitute decision maker to make medical or lifestyle decisions. While decision makers must take account of the ill person’s wishes, they are not required to follow them. This is why a refusal of treatment certificate is the only surefire way of ensuring something does or does not happen.

However, an involuntary patient can have their refusal to treat certificate ignored and their substitute decision maker may also have decisions overridden by the treating doctor.

Substitute decision makers, appointed as either an enduring power of attorney or enduring power of guardianship, take over when ill people become incompetent.

The issue of competency and who decides when it is lacking is crucial in advance directives, especially if people want to make an advance directive when someone else thinks they are incompetent.

Other jurisdictions

Other Australian states and territories allow advance directives to be made in different forms for medical treatment.

The ACT, South Australia and Queensland allow people to record what sort of medical treatment they would like while they are competent, and appoint a substitute decision maker to carry out their directive or take over where the directive stops.

The Northern Territory has a refusal to treat regime for certain illnesses and in NSW and Tasmania people can appoint enduring guardians to make decisions on their behalf, but not make an advance directive.

The UK has introduced the Mental Capacity Act 2005, which contains a set of principles to guide substitute decision makers and allows people to appoint an enduring guardian to handle all their affairs while incapacitated. Though, written instructions are needed when it comes to removal of life sustaining treatment.

In the US many states have advance directive legislation for medical care and a couple of states have psychiatric advance directives.

Specific circumstances

Advance directives may also be useful for people who want to ensure their parental and employment responsibilities are covered when they become ill, however, there is a tension between their desires and the rights of people (and animals) affected by an advance directive.

For employment purposes, advance directives could be negotiated with an employer to allow for flexibility in hours, leave provisions and special needs.

Employers are not permitted to discriminate against an employee who has a mental illness. However, advanced directives could become part of an employee record and so could be given to prospective employers, and information privacy law does not cover employee records in private enterprise.

Also, there are some instances where an employer could claim that such arrangements constitute an unjustifiable hardship on the business, especially if people are absent for long periods of time or require constant monitoring at work.

Advance directives regarding the care of children can be useful for showing the parent’s wishes. However, the State must consider the best interests of children in any decision affecting them.

Likewise, the governing legislation for cruelty to animals will ultimately put the power in the hands of the State for decisions affecting someone’s pet.

People with mental illness who rely on assistance animals are not recognised in state legislation, although federal disability discrimination does offer protection. This non-recognition may make it difficult for people to take assistance animals into hospital with them.

Where to now?

Legally recognising advance directives constitutes a complex law reform project and as such cannot be undertaken by the Commission without a reference from the Attorney-General.

Date published: 
01 Aug 2006

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