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End of life decisions for those with impaired capacity

By Julie McStay01 Sep 2009

At the end of a person’s life difficult ethical, legal and medical decisions must be made. Often a person may have lost capacity and another person must make those decisions on their behalf. Residential aged care providers should have a solid understanding of the laws relevant to the end of life decisions applicable to the jurisdiction in which they operate. They should ensure that their internal systems (including policies, procedures and training programs) are compliant with these laws and that staff understand who is authorised to make end of life decisions for persons with impaired decision making capacity and how those decisions can be made.

Broadly, the law distinguishes between positive acts taken to bring about a person’s death and passively allowing a death to take place. It will always be unlawful for take a positive act to cause a person’s death. But liability can also arise for withdrawing or withholding life sustaining treatment if the decision to do so is inconsistent with what a reasonable practitioner would have done to save or prolong the life in the same circumstances. It will always be unlawful to withhold or withdraw treatment if the intention in doing so is to bring about death.

There are, however, circumstances in which it will be lawful to withdraw or withhold medical treatment where the result of doing so will most certainly be death. Decisions to withdraw or withhold life sustaining treatment can in some circumstances be lawful even when that decision is made for a person who lacks capacity to make the decision themselves.

Decisions to withdraw or withhold life sustaining treatment

  • Adults with capacity
  • Adults who lack capacity
  • Advance directions
  • Decision by substitute decision makers
  • Palliative care

Compliance

The Accreditation Standards require that an approved provider have systems in place to identify and ensure compliance with all relevant legislation and regulations. Prudent providers will ensure that their policies, procedures and training programs are compliant with the laws that apply in the state in which they operate.

Policies and procedures should:

  • Identify the methods of substitute decision making permitted for decisions to withdraw or withhold life sustaining treatment and the steps to be taken to ensure those decisions are made in a lawful way.
  • Set the parameters for substituted decisions about palliative care and the steps to be taken to ensure those decisions are made in a lawful way.
  • Identify the enduring documents (e.g. an enduring power of attorney or an advance health directive) recognised in the state/territories in which the approved provider operates and the minimum requirements for validity.
  • Particularise how disputes between decision makers will be managed.

The laws in relation to end of life decisions for persons with impaired decision making capacity are complex. Approved providers should take legal advice to ensure that their policies, procedures and training programs are compliant with the laws applicable to the state or states in which they operate.

Hynes Legal has the expertise to help you achieve compliance.