New Zealand Law Students Journal
Last Updated: 29 May 2014
ARE WE FORGETTING SOMETHING? ADVANCE DIRECTIVES IN THE CONTEXT OF ALZHEIMER’S DISEASE
One of the many challenges faced by those diagnosed with Alzheimer’s disease is the loss of capacity to make decisions about medical treatment. As a society, we place a high value on autonomy and the right to refuse healthcare services.1 Using an advance directive is a way to exercise this right to self-determination. But are advance directives an effective legal avenue for those with Alzheimer’s disease to maintain control of their medical treatment once competence has been lost? This article outlines the law on advance directives in New Zealand by exploring the common law derived from the United Kingdom and Australia. It will define the nature of Alzheimer’s disease and highlight the advantages of Alzheimer’s patients using advance directives. This article will then address the issues that may arise including the possibility that an advance directive is not followed or is invalid. It will be argued that New Zealand should promote the use of advance
directives to the elderly and create legislation to avoid the
LLB(Hons)/BSc (in progress), The University of Auckland. I wish to thank Jo Manning for her valuable guidance and supervision. Also thanks to Elizabeth Ogle, Hamish and Eleanor McQueen for their proofing, and my family for their support.
1 New Zealand Bill of Rights Act 1990, s 11.
arising from minimal guidance. A statute formalising the law on
advance directives would provide much needed direction to
A. Advance Directives
1. Definition and description
An advance directive, also known as a living will, is a statement made by a competent person indicating consent or refusal of consent to medical treatment once they have lost competence.2 It is an “embodiment of the patient’s autonomy and right of self- determination.”3 In New Zealand, the Code of Patients’ Rights specifies that “every consumer may use an advance directive in accordance with the common law”,4 and it can be made orally or in writing.5 This includes the ability to refuse services or withdraw consent.6 It does not entitle a person to receive the exact treatments they would prefer, but wishes may be expressed and these will be met where practical.7
Advance directives may also be overridden by
2 Robin Jacoby “Ethical and Legal Aspects of Dementia” (2004) 3
Psychiatry 33 at 34.
3 HE v A Hospital NHS Trust  EWHC 1017, 2 FLR 408 (Fam) at
4 Code of Patient’s Rights, Right 7(5).
5 Part 4.
6 Right 7(7).
7 Right 7(8).
8 Pauline Wareham, Antoinette McCallin and Kate Diesfield “Advance
Directives: The New Zealand Context” (2005) 12 Nursing Ethics 349 at
The common law relevant to the creation and implementation of an advance
directive is found predominantly in the United Kingdom and
In addition to case law, the United Kingdom has recently introduced
legislation guiding the use of advance directives. The Mental
2005 (UK) sets out the formalities required for an “advance
decision”, including that it must
be in writing and signed by a
There are, however, no specific or formal requirements for the creation or revocation of an advance directive in New Zealand, so witnesses or particular formats are not needed.11 Instead, overseas authority likely to be applied in New Zealand indicates an advance directive is valid and legally binding when four key elements are satisfied: 12
(1) The individual was competent to make the particular
(2) They were free from undue influence when they made their decisions;
(3) They were sufficiently informed to make the decision; and
(4) They intended the directive to apply to the present
Re T confirmed these conditions for the validity of an
advance directive and stated that if the refusal of treatment is vitiated
“overbearing [of] the patient’s independent will,” the advance
9 Sam McMullan “Advance Directives” (2010) 6 NZFLJ 359 at 359.
10 Mental Capacity Act, ss 24-26.
11 PDG Skegg and Ron Paterson (eds) Medical Law in New Zealand
(Brookers, Wellington, 2006) at 233.
12 Phillipa Malpas “Advance directives and older
people: ethical challenges in the promotion of advance directives in New
(2011) 37 J Med Ethics 285 at 286.
will not be valid.13 This framework has been codified in the United
Kingdom by the Mental Capacity Act.14
Not only does an advance directive make lawful the failure to provide
treatment where there would otherwise have been a duty,15 it can make
the treatment unlawful if consent was refused in the advance
directive.16 Advance directives are considered to be a fundamental
part of respecting a person’s autonomy and this right to refuse medical
treatment was discussed at length in the English case Airedale NHS Trust v
... if an adult patient of sound mind refuses, however unreasonably, to
consent to treatment or care by which his life would or might
be prolonged, the
doctors responsible for his care must give effect to his wishes, even though
they do not consider it to be in his
best interests to do so ... To this extent
the principle of the sanctity of human life must yield to the principle of
This statement was, however, qualified by the requirement that “all necessary steps have been taken to be sure that this is what he or she really desires.”18 Auckland Area Health Board confirms that in New Zealand the right to refuse medical treatment allows a patient to
“require support systems be
13 Re T  EWCA Civ 18;  3 WLR 782,  Fam 95 (CA) at 116.
14 Mental Capacity Act 2005 (UK), s 3(1).
15 Skegg and Paterson, above n 11, at 233.
16 At 233.
17 Airedale NHS Trust v Bland  UKHL 5;  AC 789 (HL) at 864.
18 At 892.
19 Auckland Area Health Board v Attorney-General  1 NZLR 235 at
B. Advance Directives in the Context of Alzheimer’s Disease
1. Definition and description of Alzheimer’s Disease
Approximately 40,000 New Zealanders suffer from dementia,20
of which Alzheimer’s disease is the most common form.21
Although not exclusively found in elderly people, Alzheimer’s is
predominantly found in those over 70 years old.22 Alzheimer’s
disease results in a gradual deterioration of intellectual functions, including
an inability to learn new things,
understand language, perform daily
tasks, and the progressive loss of memory.23 This cognitive
impairment is caused by the deterioration of brain cells, which happens
for an unknown reason.24
2. Advantages of Alzheimer’s patients using advance
Alzheimer’s disease generally has a gradual onset,25 allowing a patient time to think and consider their preferences for treatment and make an advance directive before they lose competence. Patients are likely to make advance directives anticipating cognitive decline with the knowledge of the end-of-life issues they may face, so they can plan accordingly. From this perspective, advance directives will be beneficial for patients with early stage Alzheimer’s disease to extend their
autonomy beyond loss of competence.
20 Malpas, above n 12, at 286.
21 Mental Health Foundation of New Zealand “Dementia” (booklet, 2002)
22 Malpas, above n 12, at 286.
23 Mental Health Foundation of New Zealand, above n 21, at 6.
24 Alzheimer’s Society “What is Alzheimer’s Disease?” (factsheet, March
2012) at 3.
25 Mental Health Foundation of New Zealand, above n 21, at
The foreseeability of Alzheimer’s also means that family members and
doctors can be made aware of the presence of the advance
directive. This avoids
an advance directive not being followed due to healthcare providers being
unaware of its existence. It is
also useful for ensuring that the advance
directive is carefully considered and made with the awareness of all possible
of the expressed choices.
Significantly, advance directives promote autonomy and informed decision making, encouraging patients to look at all treatment options.26
This model of healthcare challenges the traditional notion of
paternalistic medicine where a patient is told what is best for their
treatment or quality of life without dialogue or consideration
consumer’s opinion. Honouring advance directives can help healthcare
providers perform their duties, particularly
to give effect to the
autonomy rights of their patient.27 Advance directives can also be
used as a guide for treatment, shedding light on patients’ values and
ideals which can influence
what a doctor might determine as the patient’s
Additionally, the use of advance directives is helpful for families. Watching a loved one gradually deteriorate as a result of Alzheimer’s disease can be a painful and emotional experience for friends and family members. One advantage of an advance directive is that it can reduce the burden of decision making or other concerns during end-of-life treatment. For example, a decision that has already been made in the form of an advance directive means that families are not left with the
difficult decision whether to withdraw life support. The family is able
26 Wareham, McCallin and Diesfield, above n 8, at 357.
27 At 357.
28 At 357.
reassure themselves that the patient is receiving the healthcare they wanted
and specifically asked for while competent, reducing
the likelihood of distress
for family members in a traumatic situation.29
3. Use and promotion of advance directives
Because of these advantages, recommending advance directive creation should
be an important part of treating or caring for an Alzheimer’s
There is little knowledge of advance directives and their use or endorsement in
New Zealand,30 but statistics from the United States indicate
completion rates of advance directives sit at only ten percent of healthy
Americans.31 This suggests that New Zealand should consider
educating the public and promoting the use of advance directives, particularly
elderly and those who care for them.
Currently, advance directives are promoted by several organisations including Alzheimer’s New Zealand Incorporated and The Voluntary Euthanasia Society of New Zealand. Among other societies, these organisations promote writing down preferences for medical treatment as the best way to create an advance directive.32 However, when hospitals in Canada and the United States have tried to encourage patients to write advance directives, “the take-up rate has been low”.33
Perhaps this can be attributed to a society that prefers not to
29 KM Detering and others “The impact of advance care planning on end
of life care in elderly patients: randomised controlled trial” (2010) 340
BMJ 1345 at 1345.
30 Wareham, McCallin and Diesfield, above n 8, at 356.
31 Senza Fazel, Tony Hope and Robin Jacoby “Assessment of competence to complete advance directives: validation of a patient centred approach” (1999) 318 BMJ 493 at 493.
32 Malpas, above n 12, at 286.
33 Jacoby, above n 2, at 34.
about or plan for death. The cultural norm can be seen as fear or denial of
death, and so the concept of advance directives is generally
Arguably, education about end-of-life issues and planning is necessary to alter
society’s perceptions, and therefore
make extension of autonomy a
possibility for everyone.
Health providers are “ideally placed to educate consumers about
advance directives.”34 Ron Paterson, former Health and
Disability Commissioner, advised general practitioners (GPs) and others caring
for the elderly to
encourage and be involved in the creation of an advance
directive.35 He stressed the importance of healthcare provider
involvement in order to make sure a patient is informed, and to enable advance
to be easily followed and understood in end-of-life treatment. This
communication can be useful to garner a general understanding
patient’s wishes or values. It is also a requirement set out in the Code
of Patients’ Rights.36 If a GP is involved in the creation of
an advance directive it is likely that there will be less contention surrounding
of a patient.
Phillipa Malpas, however, argues that the constraints within the general
practice setting, particularly on consultation time, mean
it is difficult for
GPs to promote living wills.37 The end-of-life discussion requires
a holistic assessment of the patient’s values, potential future
34 Sue Johnson (ed) Health Care and the Law (3rd ed, Brookers, Wellington,
2004) at 102.
35 Ron Paterson, Health and Disability Commissioner “Advance Directives, Living Wills and Questions of Competence” (presentation to the NZ Hospitals Association Conference ‘Chance or Choice – Staying Motivated in Aged Care’, 7 March 1997).
36 Code of Patient’s Rights, Right 6(1).
37 Malpas, above n 12, at 287.
issues, and outcomes of treatment. Many GPs also may not have the skills or
support to execute such a consultation accurately. Therefore,
although GPs are
the best placed to promote and assist with the creation of an advance
directive, several consultations
are likely to be required and GPs need to be
“adequately skilled at communicating with older persons about end-of-life
issues.”38 This requirement is likely to create a cost and
therefore an access issue.
Malpas also points out that “caution should be exercised in promoting
advance directives to older people” with areas of
concern including ageist
attitudes and stereotypes.39 Considering that many advance
directives are aimed at refusal of treatment, they could be used as a way to cut
costs on the extremely
expensive healthcare required in chronic illnesses, where
it could be seen that treatment merely prolongs the dying process. The
population in New Zealand, combined with requirements for extended treatment,
are arguably a burden on limited resources.40
However, promoting the use of advance directives in order to solve financial constraints, or even family burdens, limits the integrity of an important medium which should be promoting the right to autonomy. For this reason, Malpas argues that advance directives could be viewed by elderly as a way for doctors to justify redirecting funds elsewhere,
instead of being concerned with the patient’s treatment
38 At 287.
39 At 285.
40 John Bryant and others “Population ageing and health expenditure in
New Zealand, 1951-2051” (Ministry of Health, Wellington, 2004).
41 At 286.
Determining the validity and possible implementation of advance directives
creates an opportunity for health professionals and family
to make value
judgments about the worth of an individual’s life, in direct opposition to
the principle of sanctity of life.
It may not even be an intended or conscious
judgment about the rationing of funds, but this would still be contrary to the
to life. For example, among nurses the general attitude was found to be
that old people are “bed-blockers” who focus
limited resources away
from those who have the potential to live longer with a greater quality of
Concerning moral principles, ageist attitudes influencing rationing
should not be assisted by advance directives being used
for the wrong reasons.
To combat this problem, it is suggested that advance directives are promoted in
conjunction with relevant
training of health professionals, and guidelines for
both doctors and patients. Further, care should be taken in how advance
are offered. Living wills should not be forced on people but instead
promoted as an option to be explored and used if they wish.
Assurances should be
provided to patients that advance directives are not used to redirect funds or
ration healthcare, and are
instead important for extending their autonomy
beyond loss of competence.
4. Advance directives not followed or consulted
One significant issue limiting the usefulness of advance directives for those with Alzheimer’s is that they may not be adhered to. “The principle of autonomy all too often succumbs to society’s interest in preserving life.”43 One study showed that doctors are more likely to
make subjective value judgments concerning quality of life rather
42 At 286.
43 Sam McMullan, above n 9, at 360.
follow an advance directive created by the patient,44
while another found that in most cases involving emergency medicine,
advance directives are not even consulted.45 The disregard for
previously expressed wishes is also evident at the wider level of healthcare
providers. Two New Zealand District
Health Boards have expressed in their
guidelines that “a cautious approach to advance directives should be
taken.”46 A hospital or aged care facility with a policy that
their medical professionals should not be guided by advance directives is
an unnecessary barrier to the implementation of living wills and should
The nature of an advance directive is that it requires a doctor “with statutory and ethical obligations ... to provide the necessaries of life” to instead follow directions not to treat – in accordance with the right to refuse medical treatment.48 The natural instinct of a health professional, and the general requirement we place on our doctors, is to save lives to the best of their ability. The overarching duty of a doctor is to act in the best interests of the patient, yet obeying an advance directive may fly in the face of this central principle. Omitting to provide treatment, even if the non-action is requested, goes against the obligations and nature of
the healthcare profession. Additionally, health professionals who
327 BMJ 1 at 1.
46 McMullan, above n 9, at 360.
48 Paterson, above n 35.
both highly skilled and more knowledgeable than patients on issues of
treatment do not like having their work dictated to them by
As a result of loss of control and the potential ethical dilemmas,
advance directives may be disregarded by health professionals
who are swayed by
factors such as family opinion, implementation difficulty, fear of the legal
consequences of omitting treatment,
or an advance directive that is
non-specific. It is easy to see how a doctor may choose to interpret an advance
directive in accordance
with what they or the family are most comfortable with,
rather than truly considering the wishes of their patient. In contrast,
healthcare provider agrees with the decisions expressed by a patient in an
advance directive, it will rarely be questioned.49
A different observation was made in a study looking at whether advance directives were followed in rest homes in the US.50 It found that advance directives were treated seriously and preferences regarding feeding tubes in end-of-life treatment were honoured ninety-three percent of the time. It also found that residents in nursing homes were more likely to have created an advance directive than those cared for at home or in hospitals. Advance directives were a key part of the decisions made for treatment by staff, resulting from a culture of open dialogue and information, where the creation of advance directives in the context of holistic care meant autonomy was promoted to a high standard. Considering the value New Zealand places on the right to bodily integrity, this kind of environment is one to strive for in end-of-
49 Paterson, above n 35.
50 Cheryl Monturo “Advance Directives at End-of-Life: Nursing Home
Preferences for Artificial Nutrition” (2007) 8 J Am Med Dir Assoc
Studies addressing healthcare professionals’ compliance with
patients’ wishes as articulated in advance directives revealed
greater the level of information concerning patients’ wishes, the higher
the compliance with those requests.51 These findings encourage the
use of disease-specific advance directives, which are more likely to describe in
precise treatment choices. This method of selecting
medical intervention preferences could be seen to provide the greatest level
control over treatment possible for someone who has lost their capacity to
communicate. Others suggest that the best advance
directives are those
specifying the quality of life the patient would like to have, or their
values that might influence
a treatment decision instead of
disease-specific choices.52 These are also considered to be more
palatable to doctors. Such living wills could include preferences such as: not
being left incontinent,
objection to receiving intrusive treatment, or not
wanting to be in pain.
Specific treatment directions may be detrimental because the unpredictable nature of medical events could mean that refusal of consent will be applied even if the situation is not what the competent creator intended.53 Additionally, new treatments improving quality of life may exist that were not known when the advance directive was made. Expressing values, rather than imposing specific treatment refusals, arguably has greater potential to be followed by healthcare
professionals. Such advance directives do not intrude on the
51 Natalie Evans and others “A critical review of advance directives in Germany: Attitudes, use and healthcare professionals’ compliance” (2012) 87 Patient Education and Counselling 277 at 277.
52 Simon Towler and others “A National Framework for Advance Care
Directives” (Australian Health Minister’s Advisory Council, Australia,
2001) at 33.
53 At 33.
decisions of doctors, instead allowing the experts to use their
knowledge and experience to do what is best for the patient
preferences communicated through the advance directive. Arguably, leaving
the actual treatment decisions in the hands
of the doctors provides the patient
with a real ability to address at the most basic level what they would object to
of their body, as well as avoiding issues of ambiguity if
the directions are written by someone with little medical knowledge.
Therefore, Alzheimer’s patients should give clear and specific
instructions, make their advance directive with informed advice
doctor, and if possible write it down because “there are obvious practical
advantages in having advance directives
in writing to ensure as far as possible
that the consumer's wishes are understood and followed.”54 It
is recommended that the content contains values and quality of life
preferences rather than dictating specific treatment
refusals. However, it
could be best for some patients to create an advance directive containing
both values and specific
treatment refusals. For example, the living will
could indicate the patient would like a certain quality of life, but definitely
does not want one specific treatment.
Doctors should endeavour to remain objective when deciding to implement advance directives, and focus on the four legal requirements for a valid advance directive mentioned in the definition section above. Ron Paterson suggests that if a doctor is unable to carry out the wishes expressed in an advance directive for ethical or moral reasons, responsibility for care could be transferred to another provider.55
Medical professionals should remember that to not carry out
54 Paterson, above n 35.
55 Paterson, above n 35.
advance directive is to deny someone their rights to bodily autonomy and
Perhaps the tendency to err on the side of treatment rather than follow a
living will is also a response to the “lack of legislative
inaccessible law” about advance directives.56 It may seem much
harder to take on the responsibility for stopping treatment than simply
initiating or continuing the cascade
of treatment. If the law, and professional
guidelines, were clearer on the ways doctors should approach and respond to
it would be much easier for doctors to follow the expressed
preferences. Additionally, guidelines surrounding advance directives
very helpful to those facing the daunting task of creating a living will. If
Alzheimer’s patients were informed about
the best ways to extend their
autonomy and how their preferences should be expressed, it is more likely the
directions they leave
will be followed.
5. Issues with the validity of an advance directive
In New Zealand there are few formal requirements regarding the legal validity of an advance directive, and the ways a patient can make an advance directive are diverse. However, doctors must be careful when the advance directive is delivered by a friend or family member; they should determine if the wishes legitimately came from the patient.57
Care must also be taken where the wishes of an Alzheimer’s patient were expressed informally.58 Remarks about preferences for cessation of treatment without serious consideration of consequences are often
made by competent people, but these are unlikely to be held as
56 McMullan, above n 9, at 360.
57 Willmott, above n 47, at 563.
58 Skegg and Paterson, above n 11, at 547-548.
This is particularly due to the change in view many have when they lose
capacity but find they still value their life, or discover
that the quality of
life they want to refuse treatment for is still worth living.
Peter Skegg argues that once someone has become severely
incapacitated their views or oral remarks, which previously
would not be valid,
are more significant because they have an understanding of the quality of life
experienced while in their circumstances.59 This view arguably
extends to those suffering the initial stages of Alzheimer’s as long as
they are still sufficiently competent.
These patients will be confronted with
what it is like to live with Alzheimer’s and perhaps will have enough
of the degenerative process to have their views given more
A health practitioner cannot contradict an advance directive unless the
validity of the document is in question.60 It may be invalid if it
does not represent the most recent preferences of the patient, if it is too
vague or if the patient was misinformed.
In the context of a quadriplegic
refusing artificial feeding, which would result in death, the Supreme Court of
held that for an advance directive to be valid, a patient
must be fully informed of the consequences of any refusal of treatment
decisions.61 Any kind of misinformation or inadequate discussion
with health professionals could result in a patient’s living will being
The advance directive can also be held to be invalid if there has been a
change in the patient’s circumstances unanticipated at the time
59 At 548.
60 Wareham, McCallin and Diesfield, above n 8, at 354.
61 Brightwater Care Group v Rossiter  WASC 229,
 ALMD 431.
advance directive creation.62 This can be seen in the case of
HE v A Hospital NHS Trust where a patient had signed an advance directive
indicating refusal of any blood transfusions because she was a Jehovah’s
Witness.63 There was, however, evidence that since the creation of
the advance directive she had rejected the faith and become a Muslim. This
enough to indicate a change in the patient’s circumstances to invalidate
the advance directive. This concept of changed
circumstances could be extremely
broad and has the potential to be used inappropriately as an excuse for not
enforcing an advance
In HE, Munby J also observed that if the validity of an
advance directive is called into question in a situation where
damage to the patient’s health is to be
anticipated,” then it is in the public interest for the health providers
a court’s declaration to determine whether treatment in opposition
to the advance directive would be lawful.64 Because it is often the
life of a patient at stake, the court will need to establish “the
continuing validity and applicability
of the advance directive ... by
convincing and inherently reliable evidence.”65 On this
approach, a doctor is justified in continuing to provide treatment until a
decision is reached.66
To stop these issues preventing implementation of an advance
directive, a specific time for renewal or revocation should be
indicated at the
time of its creation so that patients can always be sure their directions stay
valid and represent their current
values and ideals for
62 Skegg and Paterson, above n 11, at 233.
63 HE v A Hospital NHS Trust, above n 3.
64 At .
65 At .
66 Hunter and New England Area Health Service v A  NSWSC 761, (2009)
 NSWSC 761; 74 NSWLR 88.
medical treatment.67 This supports the argument that an advance
directive should only be valid if it was “made fairly recently, and ...
the consumer’s current
It is possible to look to the family or carers of an Alzheimer’s
patient who have spent time with them after the advance directive’s
creation in order to help interpret the wishes expressed in the advance
directive or update preferences.69 The opinions of family or
friends should, however, “rarely if ever be regarded as a sufficient
excuse”) for ceasing treatment that would otherwise
have been provided.”70 In particular, care should be taken to
ensure a living will is not invalidated due to undue influence in its creation.
case of Hunter and New England Health Area Service v A
stressed that if the advance directive is not an independent exercise of the
person’s will, it will not be valid.71
There can also be issues of validity if the capacity of the patient at the time of creation of the advance directive is in question.72 In Hunter, it was determined that a patient’s preferences for treatment should be respected unless there is evidence to rebut the presumption of capacity. It is therefore important for Alzheimer’s patients to consult their medical professional and ensure they have the requisite capacity to
make a valid advance directive.
67 Wareham, McCallin and Diesfield, above n 8, at 355.
68 At 352.
69 Paterson, above n 35.
70 Skegg and Paterson, above n 11, at 548.
71 Hunter and New England Area Health Service v A, above n 66.
72 Willmott, above n 47, at 563.
In contrast, an advance directive is not invalid if it seems irrational or
foolish to the treating health professionals. As long as
all other requirements
for validity are present, doctors must keep in mind that they do not have to
find the living will reasonable
to implement it. The United Kingdom addresses
this issue in recent legislation, stating that “a person is not to be
as unable to make a decision merely because he makes an unwise
decision.”73 In the English case Re E, even though the
advance directive was ultimately considered invalid due to incompetence at the
time of creation, the seemingly irrational
living will was not “less
real” for it; it had the possibility of being enforced.74 It
also does affect validity where the advance directive is based on
“religious, social or moral grounds.”75
Along the same line of reasoning an advance directive will still be valid in
the absence of terminal illness, or if the person is
not in a persistent
vegetative state.76 Although these situations might be seen as
typical cases for advance directive use, there is no requirement for a certain
illness and it is up to the competent Alzheimer’s patient to
determine the quality of life at which they consider it appropriate
C. The Possibility of Legislative Change
The problems discussed show that the law in New Zealand on advance directives
needs updating. Current legislation merely indicates
that consumers have a right
to create an advance directive “in accordance
73 Mental Capacity Act, s 1(4).
74 Re E (Medical Treatment: Anorexia)  EWHC 1639 (COP) at .
75 Hunter and New England Area Health Service v A, above n 66, at 98.
76 H Ltd v J  SASC 176.
with the common law.”77 As well as enshrining the common
law in statute like this, guidelines should be set out for determining
the capacity of
those wishing to make advance directives. Guidelines on a
legally binding form for living wills should also be created. This might
the shape of a written document signed by a witness, as required in the United
Kingdom’s Mental Capacity Act.78 A signed document could give
health professionals confidence that the advance directive is authentic, valid
and should be followed.
A more formal advance directive also leaves less
opportunity for abuse or fraud.79 Additionally, a legislative
framework should inhibit medical practitioners from ignoring valid advance
Ron Paterson opposed formal requirements for the creation of advance directives on the basis that “such an approach would unduly hinder the future development and recognition of advance directives.”81
Particularly important is ensuring that no limitation or restriction is
placed on a patient’s ability to exercise their rights.
Lindy Willmott uses the consequences of recent Australian legislation to show how statutory regimes specifying the way advance directives should be made have “eroded rather than promoted the principle of autonomy.”82 She claims that regulating the circumstances in which an advance directive will operate undermines the right to bodily autonomy, and therefore legislation intending to facilitate the use of advance
directives should not contain inflexible restrictions as to form
77 Code of Patient’s Rights, Right 7(5).
78 Mental Capacity Act, s 25(6).
79 Malpas, above n 12, at 288.
80 Willmott, above n 47, at 564.
81 Paterson, above n 35.
82 Willmott, above n 47, at 556.
operation.83 “Given that the common law was shaped by the
principle of autonomy ... it should follow that the legislation also safeguards
and promotes the autonomy of competent individuals” to refuse medical
treatment.84 The aim of formality requirements is to promote autonomy
and ensure that a patient’s views are not misrepresented or unduly
influenced. Therefore the effect of legislation should not be in opposition to
It is suggested that New Zealand compromises between these
principles of sanctity of life and self-determination by leaving
of oral advance directives open, while still giving health professionals and
consumers more guidance. Ensuring that
formal requirements are not too onerous
means that those in situations where a patient cannot write an advance directive
or has limited
time are still left with a way to extend their right to autonomy
beyond loss of competence. Low-level requirements as to form and
should cater to these consumers, while also solving issues of validity or non-
This article has demonstrated that New Zealand is doing its healthcare consumers and medical practitioners a disservice by having minimal guidance and legislation on advance directives. It would be useful for all involved to have more direction in the legislation surrounding advance directives. This does not necessarily mean that advance directives need to require a particular form to be legally binding. Instead, Parliament
should set out the best requirements for determining capacity for
83 At 557.
84 At 577.
with cognitive impairment like Alzheimer’s disease, and give guidance as to how these living wills are to be treated by healthcare professionals. Advance directives will then be followed more often, have fewer validity issues, and the prevalence of use should increase to the benefit of both patients and carers. New legislation should look similar to the United Kingdom’s Mental Capacity Act 2005. The best case scenario for an Alzheimer’s patient would be to write a detailed and informed advance directive after initial diagnosis and while still competent. The patient should obtain definite confirmation of capacity in conjunction with a health practitioner to ensure the latter’s awareness of the decisions the patient is making and knowledge of the consequences of these decisions. Obtaining legal advice throughout these processes will ensure that undue influence and invalidity are avoided.