• John Chesterman

20 November 2009There are pitfalls in giving advance statements the force of law, writes John Chesterman for APO

IF I WERE knocked unconscious by a tram and had written some time earlier that I never wanted to be treated with steroids, should my preference be respected? What if my partner could attest that I had recently changed my mind? Or what if my doctor said that I needed to take steroids in order to be well again? What should the doctor do?

Advance health statements are an important means by which we can exercise some control over what happens to us if we lose capacity to make our own decisions. They bear some relationship to enduring powers of attorney, through which we can appoint people to make decisions for us when we are unable to do so. The difference is that advance statements specify the actual decisions in advance, not just the names of the people who will make those decisions on our behalf.

In Victoria, for example, the legal status of advance statements is that they are an important guide for the “person responsible,” the legal term for the person (usually the closest relative, unless specified otherwise) who is empowered to make medical decisions in the event of a person’s incapacity. This person can consent to, and withhold consent to, medical treatment on the patient’s behalf, and advance statements can be very helpful in assisting them to make appropriate decisions. Sometimes the person responsible – where they have been appointed under an enduring power of attorney (medical treatment) or have been appointed by VCAT as a guardian – can sign a Refusal of Treatment Certificate, if they believe that this is what the person would have wanted. Here, again, an advance statement can be very instructive.

But should advance statements have the force of law? Should doctors be forced to comply with them?

This really engages the fundamental philosophical question of when we should be able to control our future choices. A key incident of being human is the freedom to change our minds. The law has traditionally been very reluctant, outside the financial realm, to recognise attempts to limit future choices. Sure, we can sign a contract of employment, and we may suffer financial consequences for breaching the contract, but the law will not physically compel us to turn up to work. We cannot, as Mill’s famous statement on the limits of liberalism attests, sell ourselves as slaves.

That may sound like an egregious analogy, but advance statements can deal with such fundamental matters as life and death. They can contain instructions that irreversibly alter a person’s life, including bringing about their death.

To be sure, the enforcement of some advance statements is utterly unobjectionable. Imagine an unconscious woman in the advance stages of terminal cancer who has previously specified that she wanted no medical super-heroics. The woman’s husband is told that his wife would be a candidate for a new trial drug that might, at best, prolong her life for a period of weeks, but that is just as likely to hasten her death. Few people would argue that the woman should receive the drug and have her advance statement ignored.

At the other extreme, let’s assume a forty-year-old man is in a coma following a traffic accident, and the prognosis is that he will never walk again even if he regains consciousness. Let’s also assume that twenty years earlier he made an advance statement specifying that he wanted all medical treatment stopped in the event that he became permanently incapacitated in any way.

Some may argue that this man’s advance statement should be followed, but many would think that it shouldn’t. Indeed there is some US evidence to suggest that advance statements made prior to the onset of a current medical condition do not always bear particularly close relationship to patients’ later thoughts when they become unwell. The terrible life the then twenty-year-old man may have imagined his inability to walk would usher in, may not be so terrible when he gets there twenty years later.

What matters, according to the research, is not so much what the person has written in the advance statement but how well the decision-maker knows the patient. We cannot be sure in advance how we might react to the unfortunately large variety of serious medical predicaments which may befall us. But if we know our “person responsible” well and have talked to them over many years about our medical wishes, they will be able to draw on these conversations should they ever need to make difficult medical decisions for us. The notes on a piece of paper will help, particularly when they have been made by someone in relation to a current condition. But we’d need to be careful before we gave those notes the imprimatur of law. •

John Chesterman is Manager of Policy and Education at the Victorian Office of the Public Advocate.

Photo: Pali Rao/ iStockphoto.com