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Moving towards a national framework for advanced care directives

By Julie McStay23 May 2011

Advanced Care Directives (ACDs) provide for autonomy in health care decision making after a person has lost capacity. The laws relating to ACDs are complex and vary from state to state. Considerable support has been expressed for greater national consistency in those laws.

In 2009, in recognition of the diversity of legislation and the challenges experienced in using ACDs, the Australian Government appointed a working group to prepare a draft ‘National Framework for Advance Care Directives’ (the Framework). The draft Framework offers a best practice guide for a consistent approach to the use of ACDs and is a valuable resource for aged care providers to improve their processes with respect to the use of ACDs. This article summarises the most significant proposals contained within the Framework and considers how they can be incorporated into an aged care provider’s policies and procedures.

The Framework

The Framework does not replace, nor override the law in each state and territory which applies to the use of ACDs. The Framework acknowledges that developing a nationally consistent legislative approach to ACDs will be a slow process. The Framework has primarily been developed to inform policy-makers of the key ethical and practical issues associated with the use of ACDs and is a valuable resource for aged care providers to use to improve their internal systems.

The Framework has two parts:

  • a code for ethical practice; and
  • a set of best practice standards.

Providers should consider adopting a policy about the use of ACDs which is consistent with the laws in the state in which they operate and which is also consistent with the ethical principles and the best practice standards contained within the Framework.

The code for ethical practice

The code consists of 15 principles which acknowledge the importance of maintaining personal autonomy and are intended to guide ethical practice where ACDs are applied in a health or aged care setting.

The ethical principles contained in the Framework are not laws, but set out some basic principles that should be applied to the use of ACDs across the board. When undertaking a review of their processes with respect to the use of ACDs, aged care providers should ensure that their policies and procedures are not inconsistent with ethical principles contained in the Framework.

The following ethical principles are contained in the code and policies and procedures should reflect these principles:

  • competent adults are autonomous individuals and are entitled to make their own decisions about personal and health matters;
  • a substitute decision-maker carries the same authority as that of the person when competent;
  • an ACD can be relied upon if it appears valid on its face;
  • a refusal of a health-related intervention in an ACD is binding;
  • a person or their legally recognised substitute decision-maker, can consent to treatment offered, refuse treatment offered, but cannot demand illegal treatment; and
  • a valid ACD that expresses choices or preferences relevant and specific to the situation at hand must be followed.

An awareness of the code (and consistency of internal systems with the code) will assist aged care staff to appreciate the use of ACDs in an aged care setting. It will also provide an ethical understanding for staff as to the role of aged care professionals in the use of ACDs in clinical practice.

The best practice standards

The best practice standards describe best practice in the use of ACDs and are intended to guide the development of laws and policy. They are also intended to provide a means to measure practice against a national standard and determine whether law or policy needs to be changed to meet those standards. A move in practice towards these standards will assist with greater national consistency despite the current diversity of legislation.

Aged care providers can incorporate the best practice standards into their policies and procedures with respect to the use of ACDs.

In order to adopt the best practice standards referred to in the Framework providers, as a start, would consider the following:

  • Staff should be educated about the provider’s policy and procedure on the use of ACDs.
  • A provider’s admission policy should incorporate a requirement that prior to the admission of any new resident, staff will:
    • ask prospective residents (and their families) whether they have an ACD;
    • provide information to prospective residents and their family members about the use of ACDs - which could include providing a copy of the provider’s ACD policy and procedure; and
    • inform prospective residents (and their families) that the resident does not have to complete an ACD.
  • Providers should implement a system for storing and recording ACDs. The best practice standards recommend designated ACD sleeves in the front of care recipients’ notes that are readily identifiable and ensure that the ACDs travel with the resident between health and aged care settings.
  • Health and aged care practitioners are encouraged by the best practice standards to propose a review of ACDs when a care recipient’s health circumstances change. The provider’s policy and procedure on the use of ACDs should inform staff of this expectation and provide for the circumstances in which the ACD should be reviewed.
  • Policies should differentiate between ACDs and clinical care or treatment plans but ensure staff are aware that clinical care plans should nevertheless be consistent with the person’s ACD.
  • The policy and procedure which is adopted about the use of ACDs should complement the aged care provider’s policy on end of life decision making.

The best practice standards are not law and to the extent there is any inconsistency between the Framework and the laws in each respective state, the laws will prevail.

However, if implemented into internal systems appropriately, the best practice standards will reduce the current barriers and challenges associated with the use of ACDs.

Where to next?

The Framework is the first step towards a nationally consistent system regulating ACDs. Once the Framework has been finalised, it will be submitted to Health Ministers for approval.

Aged care providers should seek legal advice when drafting policies and procedures about the use of ACDs (and about end of life decision making) as the laws are complex and differ from state to state. Hynes Legal has extensive experience in this area.