Scenario
As they age Dick and Dora have become increasingly concerned about their carers and medical practitioners caring for them in particular ways should situations arise where, if they were “competent” or otherwise of sound mind and able to speak for themselves, they would refuse medical treatment.
Guidance
The common law principle on the right to refuse medical treatment is stated by the Australian High Court in Marion’s case and is the corollary to the law of assault and battery. The High Court quoted the words of Cardozo j in Schoendorff v Society of New York Hospital [(1914) 105 NE 92 at 93:
“Every human being of adult years and of sound mind has a right to determine what will be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault.”
In situations much more common than you think, the only person who is unable to have a say about what should happen to them in relation to their treatment is the patient as they are unable to do so, for whatever reason but commonly because they are unconscious and on life support.
How does that person have their say? They do so in New South Wales by firstly directing their Enduring Guardian how they wish to be cared for in certain situations. As there is legal argument which has not been tested at the Supreme Court or High Court, there is a need in NSW to prepare a Living Will, which is otherwise known as an Advanced Health Care Directive.
The Living Will or Advanced Health Care Directive is a written statement which describes how the Living Will maker wishes to be treated (or not treated) in certain situations. It is a document that should be reaffirmed or modified by the maker from time to time. It is a document directed at the makers family, medical practitioners, hospitals whom it may be cared for, their spiritual leader and advisor and other health care professionals.
It covers but is in no way limited to issues relating to ventilation, artificial hydration and feeding, and palliative care.
Living Wills are not for everybody but many of us while we think of these things do not take the time to advise and affirm others of our views about how we wish to be treated in particular situations. This is one way that those who wish to, take control or strongly influence their future.
Assisting suicide and mercy killing are illegal and are not condoned by the common law principle on the right to refuse medical treatment.
Information: Blackwell Short Lawyers (Elder lawyers), www.health.nsw.gov.au (Advanced Health Care Directive).