A Contemporary View on Advance Directives: Reconceptualising their Theoretical Application in Aotearoa New Zealand

Abstract

An advance directive (AD) is an instruction given by a competent person for withdrawing or withholding treatment at the end-of-life when the person becomes incompetent. The binding status of an AD is controversial. ADs are often not accepted as legally binding principally because there is no certainty that they express the patient’s current autonomous wishes. Once the patient has lost competence, there is no opportunity to verify the decision to refuse treatment. An AD differs from contemporaneous refusals in this regard, which give rise to certain problems. The foreign jurisdictions surveyed in this thesis (UK, Australia, Canada and Singapore) have responded to the uncertain legal effect of ADs by imposing formal statutory requirements for making an AD. However, these formalities do not appear to resolve the uncertainties of implementing ADs. New Zealand permits the use of ADs as expressions of autonomy, but their status and effect are unclear. The aim of this thesis is to clarify the legal status of ADs in New Zealand. Several research questions guided this inquiry: Should ADs become legally binding in New Zealand? If so, what measures or approaches should New Zealand adopt to make ADs binding? Should the proposed approach become formalised and made compulsory in order for an AD to be given binding legal authority? Alternatively, should the legal uncertainties of ADs be clarified through a statutory approach? The research identified several unique characteristics of ADs which differ from contemporaneous refusals; a distinguishing feature being the decision-making process. This feature affected the binding status of ADs. Additionally, the currently dominant conception of autonomy, which relies on non-interference, is inadequate to capture the distinctive characteristics of ADs. This thesis argues that applying the supported decision-making (SDM) approach to ADs and reconceiving autonomy as including empowerment will help ADs achieve a higher likelihood of becoming legally binding. The research findings support the introduction of SDM and a pro-forma for ADs. SDM pre-empts challenges to the validity of an AD in respect of the person’s capacity, voluntariness and understanding of the nature and consequences of refusing treatment at the time the AD is made. This approach encourages support to either build the person’s capacity in anticipation of making the ADs or during the process of making ADs. This thesis thus provides a new decision-making framework aimed at making ADs legally effective. Given the strong patient-centred approach and the absence of formal requirements for ADs in New Zealand, it is important to clarify the legal status of ADs by introducing a special regime for ADs incorporating the SDM approach and the notion of empowerment. This regime involves the creation of a nation-wide approved pro-forma for ADs, which provides an option for consumers wishing to make ADs that are more likely to be accepted as legally binding, while retaining the flexibility of making ADs under the common law and the Code of Rights.