Advance care Directives Essay Example

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Advance care Directives

Advance care Directives

Executive summary

In the past decade, many concerns have arisen on the state of advance care directives in Australia. A state of confusion exists between the public, health practitioners, and the government on the framework and implementation of advance care directives (ACDs). The other contributing factors to the implementation of ACDs include the increase in the population of elderly people, increased rate of dementia, and augmented costs and expenses in health care. In addition, research shows that the increased paradigm shift from medical care paternalism to patient sovereignty affects the decision making process in the entire advance care system. The current prospects suggest that these factors significantly contribute to the advance care planning situation not only in Australia, but also internationally. Of all these factors, availability of resources remains the most important issue affecting the health policy making process.

The legal framework has forgotten the wishes and rights of the aging population, which fears dying in advanced technology hospitals, while receiving hostile end-of-life medical care. Medical analysts suggest that the way to solve these issues is to adopt an advance care planning (ACP) strategy. The ACP strategy is beneficial as it provides people with a sound mind to enlist their mode of treatment when they are either old, ill, or in an incompetent state. The common law of Australia provides every citizen with the right to make their own decisions when it comes to choosing the medical care they want. Although most individuals are able to follow the law without difficulty, some fall severely ill before they can make such decisions. Consequently, it becomes difficult to make tough decisions when a patient is either critically ill or unconscious.

The law provides a way out of this barrier by stating that the patient may appoint a representative to carry on with the decision making process. The process is done legally through either the power of attorney for health or enduring guardianship. The public needs to have all the information pertaining to advance medical care to make the right decisions when writing their living will (advance directive). This essay contextually describes advance care directives, analyzes their legal aspects, and critically evaluates the effective application of advance care directives in the existing medical practice environment.


An ACD living will refers to a formal written document that enlists the future health care wishes and preferences of an individual. People who are of sound mind can prepare an ACD. The execution of the directives in the ACD happens only if, at a given point in the future, the owner becomes incapacitated and is unable to make viable health care related decisions for their wellbeing (Collins & Lehane, 2013). It is important to write an ACD to prepare in advance for future health uncertainties and old age. It gives medical practitioners and family members first hand information on how to take care of an incapacitated individual. In addition ACDs either reduce or prevent the chances of administering the wrong treatment. The living will represents the earliest form of an ACD. Luis Kutner, a former Illinois attorney in the United States of America, was the first person to introduce the Living Will (Xue & Hollier, 2012).

He proposed it in 1969 via various law journal publications. He borrowed the proposition of the living will from the existing estate law that gives individuals the mandate to control the future prospect of their property when they die. The making of the will occurred when the person was still alive hence the name ‘the living will’ (Bede et al., 2011). Subsequently, in 1991, the inception of the Patient Self-Determination Act demanded that medical practitioners should avail the necessary health care information to their patients. In addition, it required health care providers to allow patients to make independent health care decisions. Later, they termed these approaches as advance health care directives. The idea spread globally as individuals desired to customize their health care needs (Theofilou, 2012).

In Australia, the ‘living will’ originated in the late 1980s. The Northern Territory and South Australia ratified the Natural Death Act, which allowed an individual to record personal medical care preferences in the legal document. Unfortunately, the act did not provide a wide aspect to cover for the demands of ACDs. The Australian legislation enacted several jurisdictions that gave a clear broader coverage on the ACDs (Crawford, Brooksbank, Brown, Burgess, & Young, 2013). In addition, the effectiveness of written documents required alternative decision making to perfect the functions of ACDs. The power of attorney act drafted and implemented in 1998 defines the concept of ACDs. Moreover, the Guardianship Act and the Administration Act drafted in 2000 enlist the legal and procedural requirements of an ACD (Silvester et al., 2013).

The preparation of ACDs in Australia requires the individual to undertake the Advance Care Planning process. The process involves thinking, consulting, discussing, and recording personal medical care wishes. An individual needs to complete an Advance Care Directive form. In the event that the individual cannot complete the form due to incapacitation such as dementia, the implementation of a plan of care occurs (Deasy et al., 2012). The enduring guardian has the mandate to write a plan of care for the patient. The writing occurs in collaboration with the patient’s doctor and either close relatives or friends. An enduring guardian refers to a person appointed by individuals in advance to act on their behalf in health and personal care decisions. However, the party lacks the ability to provide consent on financial transactions. The patient appoints a power of attorney to handle financial decisions (Smith & Hillner, 2011).

On the other hand, an enduring power of attorney represents a personal request by the patient to a particular person to execute their financial wishes. Some states in Australia utilize the common law in the implementation of ACDs while others solely depend on legislated ACDs. For example, both Victoria and South Australia use four independent and distinct ACDs governed by three distinct legal acts. It creates a state of confusion when it comes to implementing an interstate ACD jurisdiction. The variability created by Australia’s ACDs has caused a public uproar. Critics suggest that the variability comes from the inadequacies and divergent nature of Australian ACDs (Frost, Cook, Heyland, & Fowler, 2011).

Queensland and the Australian Capital Territory consolidated their ACDs into a sole act to reduce divergence and inadequacies. They made the ACDs available and accessible to the general public. However, the other remaining states utilize the Enduring Power of Guardianship except for New South Wales that depends solely on common law provisions of ACDs enacted in 2005. From 2005, many states have reviewed their ACD provisions to accommodate various public expectations. The absence of the case law in providing guidelines, forms a major difficulty in the review process. In the late 2009, the Australian legislative court passed a ruling that legalized the guidelines in ACDs (Detering, Hancock, Reade, & Silvester, 2010).

The Analysis of Advance Care Directive Policies

Currently, South Australia has three enacted, acts that describe the four advance directives present in the state. Moreover, two ministers control the mandate of the four acts. The minister for Health controls both the Palliative Care Act and the Consent to Medical Treatment Act, enacted in 1995 (Liaw et al., 2011). On the other hand, the Attorney-General controls both the Powers of Attorney and Agency Act of 1984 and the Guardianship and Administration Act of 1993. The legislation consolidates the three acts into the Consent Act, the Powers Act, and the Guardianship Act. Ironically, the ratification of the three acts occurred within a decade. Firstly, the Powers Act provides guidelines that ensure effective and efficient management of an incapacitated person’s financial desires. It gives power to the Attorney to direct the financial decision of the patient. The process involves a double decision-making instrument (Buiting, Clayton, Butow, Delden, & Heide, 2011).

Firstly, the Enduring Power of Attorney elects a financial attorney. The Attorney’s mandate involves the management of the patient’s affairs. The patient stipulates whether during the election, the financial attorney should act before or after the patient is incapacitated. Secondly, the Powers Act allows the Power of the Attorney to elect a legal representative who manages the financial needs of a competent person until the person becomes incapacitated. The second instrument is outside the context of the advance directive framework (Johnson et al., 2011). Thirdly, the Guardianship Act provides guidelines that take into account the medical preferences and wishes of mentally incapacitated individuals. The act enlists a wide range of medical care decisions apart from mental concerns. They include health care services provided by medical care practitioners such as psychologists, physiotherapists, and dentists among others (Petriwskyj et al., 2013).

In addition, the act allows the appointment of a medical agent. If that happens, the appointed party makes the medical decisions while the enduring guardian makes the broader life and health requirement decisions. It also provides an informal environment where decision making can occur. The remaining part of the act establishes the Public Advocate office, the Guardianship Board, and the Registrar. It also controls the operations of established offices. Thirdly, the Consent Act mandates the patient to choose the mode of end-of-life treatment. The act has proved important as it saves extra expenses incurred by a dying individual. The acts have influenced the Australian public to perceive health in terms of both physical and mental well-being. However, many Australians have the fear of losing dignity, autonomy, and the capability of controlling their wishes after they become incapacitated (Blackford & Street, 2011).

According to Boyd et al. (2010), to overcome this situation, the legislation provides a community support that aids in personal determination. The self determination process is important in making end-of-life decisions and in the appointment of trustworthy alternative decision makers during incapacitation. The current state calls for the legislation to standardize the Australian system of ACDs. It is upon the minister of Health in Australia to implement a national policy framework. The framework recognizes the practical, physical, and social challenges that lead to the divergence of ACDs in Australia. Moreover, it covers the worries of end-of-life decision making. The national framework consolidates the existing concepts and intended goals of ACDs (Bennett, Davies, & Higginson, 2010).

Critical Analysis of Current State of Confusion

The issue of divergence deeply lies in the scope of ethical and legal concerns. Nationally, there is a lack of a lawful enforceable ACD description. However, states like Queensland, Western Australia, Victoria, and Southern Australia have clear ACD legislations, but they are only valid within the particular states. It exempts the general Australian public from fully trusting and embracing ACDs. Cancer patients who are not broadly covered in the current national ACDs are the most affected. It creates much divergence and uncertainty prompting doubts among members of the public. For that reason, the legal aspect is just a part of the nation’s confusion. In this regard, the common law allows one to record an ACD within a particular state. The recorded ACD is transferable within Australian states regardless of the specific state provisions and restrictions on ACDs (Rhee, Zwar, & Kemp, 2012).

However, according to Badger et al. (2012), the power reinstated on the medical practitioners may influence them to reject the provisions of a particular ACD if they feel unsatisfied with the consumers’ directive. The Australian Medical Association statement in October 2013, on ACDs, provided their position on the current state of the legal documents. The statement said that the current ACDs may force the doctors to dismiss the directive if they feel it is not appropriate for the patient’s health care needs. The Australian public feels that they solely need to choose their own health care directives, because they have that mandate under the ACDs’ acts. On the other hand, the same law mandates the doctor to either abide by or refute the consumer’s directive if, upon analysis, it is found that it does not suit the consumer’s health (Watson, 2012).

In addition, the AMA proposes the doctor to do to safeguard the life and health of sick persons, especially cancer patients who are increasing in number on a daily basis. Additionally, the Australian Law Council tends to focus more on the implementation of the national framework despite the current state of confusion. Firstly, the legislation needs to clear as regards its coverage and the description of ACDs not only to restore the public’s trust in them, but also to ensure all areas of health concerns, including mental and physical ones, are included. For this reason, the current situation forms an aspect of an interstate paper jam. It is attributed to the lack of uniformity in the provision of ACDs in different states across the entire nation. The legal validity of ACD documents is questionable due to the vast array of health care directive forms (Michael et al., 2013).

These forms vary in terms of procedures and names. The question that leaves the public in a dilemma is whether the acceptance of the forms will take place in the different states. Moreover, the AMA reinstates that the forms may expire by the time the health care directive matures. The AMA explains that, during the preparation of ACDs, the patient is unable to predict the precise future situation of incapacity. Consequently, the recorded directives may not conform to the consumers’ health care needs after being determined by the doctor. It prompts the medical practitioners to determine the appropriate mode of action that is tailored to the state of the patient’s incapacity (Rhee, Zwar & Kemp, 2013a).

A given ratio of scholars suggests that the restrictions imposed on the application of ACDs create a state of confusion and diversion. On the other hand, doctors affirm their part in the decision making process because many health care directives lack specificity. They attest to the fact that they refuse the patient’s wishes most of the times to treat them appropriately. They only tend to follow the patients’ wishes in inconsequential healthy needs. It is necessary for both the medical and legal fraternity to respect the patient’s preferences regardless of the situation (Crozier, 2013). The finding of the study conducted by La Trobe University recommends that medical practitioners should not shift from the decision preferred and recorded by the patient. Consequently, the national policy should govern the procedure in which the health professionals should follow in reviewing patients’ directives (Sinclair, Auret, & Burgess, 2013).

According to Jeong, Higgins, and McMillan (2011), the national policy closely resembles the Australian Law Council’s proposed national framework. It is important for the legislature to put in place legally recognizable ACD documents. This will shift the current state of confusion to standardized and respectable ACDs in Australia. The AMA seconded the recommendations of La Trobe University in their yearly journal publications. The finding by the university shows clearly that there is a gap involving ACD laws, the interventions done by medical professionals, and the wishes of the patients. Mainly, the gap exists due to a lack of communication between the concerned stakeholders. Filling the gap requires the stakeholders to host continuous talks. The talks will not only update the consumers on the current state of ACDs, but also motivate them to make wise end-of-life decisions (Rhee, Zwar, & Kemp, 2013b).

Australian health professionals will have to abide by the directives of the patient because they will have no mandate to refute a decision made by a competent and well-informed person. The recommendations suggested by both AMA and La Trobe University forced the Health Minister to pay close attention to the national framework proposed by the minister’s advisory (Council Jones et al., 2011). It is important for the health minister to recognize the need of standardization and uniformity of ACDs. By doing so, the minister will implement the national policy framework. The national framework report shows that it is not only through diseases that most people die; a good number of people pass on as a result of natural causes. Alternatively, many Australians fear the progression to death than dying itself. It is a fact, considering the evidence found in the report released by the Australian Institute of Health and Welfare in 2013 (Rhee, Zwar, & Kemp, 2013c).

The report shows that both the public and private hospitals admitted more than 56,000 people in palliative care, and the number is increasing rapidly. Before the implementation of a National Framework that will standardize the protocols of ACDs, patients can still use the legal checklist. This is because the legal checklist is applicable in all Australian states. The checklist approach solves many of the cancer patients’ dilemmas concerning the uncertainty and divergence of ACDs. That is the only way of circumnavigating the interstate limitation of the ACDs. An ACD that can stand legal criticism and scrutiny should meet several requirements outlined in the checklist (Scott, Mitchell, Reymond, & Daly, 2013).

The requirements include writing the ACD with a sound mind and stating clearly both the acceptable and unacceptable mode of treatment. Moreover, the document should conform to the current treatment criteria for health problems such as cancer. In addition, the principal should take the mandate of writing the document solely. On the other hand, the medical professional can honor the consumer’s health care directive when the individual informs the medical fraternity about the existence of the ACD. Additionally, the consumer should inform the enduring guardian about the contents of the ACD. These approaches slightly solve the devastating current state of confusion. The legislation should close the gap that exists between the concerned stakeholders (Thomas & Lobo, 2011).


The public calls for the reformation of the current state of ACDs in Australia. On the other hand, the legislation council does not recognize that a communication gap exists between the concerned stakeholders. A critical analysis of the paper shows the beneficial prospects of the National Framework in standardizing the current state of ACDs. Consequently, the approach will avert uncertainties and divergences experienced in the implementation ACDs. The paper also shows the source of confusion that emanates from the enacted ACD Acts. When the legislature enacted more Acts to cover the increasing health requirements of the public, it created a divergence in health care directives. Additionally, the different state statutes limit the use of the ACDs in Australia.

Consequently, it is upon the consumers to take precautions when selecting the appropriate end-of-life plan to prevent document rejection by medical professionals. Research calls upon the medical professionals and doctors to abide by patients’ health care directives. That will instill confidence in ACD propositions among patients. However, the implementation of the National Framework will completely remove the state of confusion. The paper provides a temporary solution to circumnavigate the limitations of ACDs. The solution requires consumers to choose their appropriate advance health care directives from a checklist. In conclusion, research shows that the legislation has the major mandate of ensuring uniformity of ACDs in Australia.


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