New South Wales – Common Law Advance Health Directive

Common Law Advance Care Directive

The Guardianship Act 1987 (NSW) implies that a person who lacks capacity may refuse treatment in advance: ‘a person shall be taken to object to the carrying out of medical or dental treatment … if the person has previously indicated in similar circumstances, that he or she did not then want the treatment to be carried out, and has not subsequently indicated to the contrary.’

However, there is no legislation in New South Wales that directly provides for statutory advance health directives. Instead, common law principles relating to advance health directives are applicable, and a directive prepared in New South Wales may have some legal effect.

In 2009, in Hunter and New England Area Health Service v A,a document refusing kidney dialysis completed by an adult with capacity was held by the NSW Supreme Court to constitute a valid advance health directive.

An advance health directive may be valid at common law if all of the following conditions are satisfied:

1 Capacity: The adult must have had capacity at the time the advance health directive is made and is able to communicate the decision in some way.

2 Voluntariness: The directive must be made voluntarily without coercion or undue influence when making the advance health directive.

3 Specificity: The patient intended the refusal to apply to the specific situation that later arose.

Legal Effect

If a health professional fails to comply with an advance care directives that meet the relevant standards, this may constitute a common law assault or battery.

Legislation
Guardianship Act 1987 (NSW)

Further Information

Further information, including relevant forms, is available from the following links:

NSW Health

Guardianship Tribunal

Advance Care Directive Association
18/113 Johnston Street,
Annandale NSW 2038
Ph: 0423 157 003

NSW Law and Justice Foundation – Advance Health Care Directives