High Court upholds validity of advance directive
In a recent decision, Chief Executive of the Department of Corrections v Shaw [2024] NZHC 2976, the High Court confirmed an advance directive was valid, and that everyone, including health professionals, will have a “lawful excuse” for complying with the directive.
Advance directives are not often considered by the courts, so this decision will be significant for people who want to rely on one.
Background
In this case, Mr Shaw is serving a sentence of imprisonment at Rimutaka Prison, and is on a hunger strike. He has had two advance directives, the first refusing any medications, intravenous fluids, nasogastric feeding, or CPR, and the second saying “I do not want to receive any medical treatment” and “I intend the directive to apply under all circumstances that might arise during a hunger strike.”
The High Court received evidence from various medical experts, including psychiatrists and a professor of bioethics. Mr Shaw declined to meet with the psychiatrists, but they all noted that based on the material available to them there was nothing to suggest that he did not have capacity to make decisions. The professor said that:
“it is a cornerstone of medical ethics that the voluntary decisions of competent individuals should be respected, including through advance directives.”
She also said that there is:
“broad consensus within medical professional bodies and in codes of medical ethics that respect for autonomy extends to respecting a competent person’s voluntary refusal of food and artificial nutrition, including incarcerated people.”
In addition, a palliative medical physician said that “a competent person’s freedom to make voluntary health-care decisions is in keeping with clinical recommendations on best practice, even if the decision from a medical perspective is seen to be unwise.”
The High Court decision
Justice Radich acknowledged that:
“there is no statutory guidance about the requirements of a valid advance directive in New Zealand and the common law has not developed far in dealing with them.”
Previous decisions in New Zealand have upheld the validity of an advance directive, but without specifically considering the requirements to make one. The Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 sets out the rights of a person to make and use such a directive “in accordance with the common law”, but does not outline the specific requirements of such a directive.
Capacity to make an advance directive
The key requirement for the validity of an advance directive is that the maker has capacity to make decisions at the time of creating the directive. In this case, although not interviewed by the psychiatrists, all considered that Mr Shaw had capacity. It was noted that:
“A person performing a hunger strike is presumed competent. They make a sustained and repeated choice, consciously and deliberately, to refuse food as a form of protest while, primarily, suicide attempts are viewed as both impulsive and irrational. While there is a generic ethical obligation on health providers to prevent suicide, that should not, it is said, be taken as a warrant to ignore a valid and competent refusal of nutrition in the context of a hunger strike.”
The clear dichotomy in this case means that Justice Radich did not consider the cases between, such as the case of a person with a fatal illness, whose choices in their advance directive are intended to either not prolong or hasten their death, which is already both inevitable and imminent.
Content of an advance directive
This decision did not provide a concise list of everything that needs to be covered within an advance directive. However, it was accepted that the directive should cover:
- a description of any health care or treatment which is acceptable or unacceptable; and
- an acknowledgement of all potential serious risks and consequences of a refusal of medical intervention, including serious disability or death.
The individual should be able to clearly answer any questions relating to either the consequences of the directive or the reason for it.
Effects of an advance directive
Justice Radich made a declaration that health professionals (and others involved in Mr Shaw’s care) would have a “lawful excuse” for not complying with section 151 of the Crimes Act, which creates an offence of failing to provide the necessaries of life so that a person’s life is endangered or health is permanently injured. This means that the health professionals could not be prosecuted for abiding by the wishes expressed in the advance directive.
This can be a key concern for makers of these directives, who want to ensure that their family, friends, and any other people will not be prosecuted for complying with their wishes.
The future of advance directives
In reaching his decision, Radich J considered case law from the United Kingdom, and noted that the requirements for advance directives have now been set out in their Mental Capacity Act 2005.
The New Zealand Government has recently introduced a Mental Health Bill, to create a modern legislative framework for compulsory mental health care. This Bill will allow any person with capacity to make a compulsory care directive, and effect must be given to such a directive if one is made.
The Law Commission is also currently reviewing New Zealand’s present adult decision-making capacity law, the Protection of Personal and Property Rights Act 1988, which may recommend changes to the way advance directives are made and used.
In the meantime, this case is useful guidance for those with questions about preparing, signing or complying with an advance directive. If you have any queries about the validity of an advance directive, or wish to prepare one, please be in contact with Nick Laing in our Health Law team.
Special thanks to Nick Laing for preparing this article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
