Consultation Paper on Bioethics - Law Reform Commission

E Prescribed form
4.34 In certain jurisdictions, such as the Australian Northern Territory, an
advance care directive must be in a prescribed form. 45 There are a number of
advantages associated with this formality. First, it provides a guide for patients
who might otherwise make “medically unsound or legally untenable” requests in
which case “the doctor responsible for implementing the living will may be
exposed to ethical and legal insecurity.” 46 Second, if a range of different
documents were employed, doctors might find it difficult to adopt a workable
practice and simply choose not to pay attention to them. 47
4.35 The Alberta Law Reform Commission recommended, however, that
patients should be free to adopt any form of advance directive:
“To include a recommended form in the legislation might well give the
misleading impression that it is the only form (or the preferred form)
of healthcare directive, and thus might be adopted regardless of the
particular individual‟s needs and circumstances. A healthcare
directive should be tailored to fit the wishes and needs of the
individual, and we would not wish the legislation to imply that there is
a „boilerplate‟ version which can be used in all cases.” 48
4.36 An advance care directive will differ according to the treatment
refused and the circumstances in which it was drafted. Due to the individuality
of each advance care directive, one form will not suit all. The Commission
recognises, however, that there is a basic amount of information which should
be contained in any advance care directive. The information should include, but
not be limited to, the name, address, date of birth and GP of the advance care
directive author, the treatment to which the author does not wish to consent to
and the name and address of the proxy. Because of the scope of circumstances
noted, the Commission does not wish to be prescriptive in this respect but notes
45 Section 18(1) of the Natural Death Act 1988 (NT).
46 Kings‟ College London The Living Will: Consent to Treatment at the End of Life
(Working Party Report, Age Concern and Centre of Medical Law and Ethics
(1988).
47 Schlyter Advance Directives and AIDS (Centre of Medical Law and Ethics Kings
College London 1992) at 70.
48 Alberta Law Reform Commission Report on Advance Directives and Substitute
Decision Making in Personal Health Care: A Joint Report of the Alberta Law
Reform Institute and the Health Law Institute (No 64 1993) at 17.
100