Australasian Journal on Ageing, Vol 24 Supplement June 2005, S25 –S29 S25 Blackwell Publishing, Ltd. The Australian experience of advance directives and possible future directions Cameron Stewart Division of Law, Macquarie University This paper analyses the role that advance directives can play in the formation of advanced care planning. Following on from a review of the legal history of advance directives in Australia, including the common law and statutory regimes, it is argued that schemes for advance directives have not yet proven to be successful. It is proposed that what is needed is a more integrated approach, whereby advance directives are but one mechanism used in a wider concept of advanced care planning. This integrated approach should employ a variety of mechanisms including proxy decision-making, structured concepts of best interests and clearly defined dispute resolution processes. Introduction In Australian common law, a patient has the right to control his or her body. This right of self-determination includes a power to make treatment decisions in advance, so that patients’ decisions remain binding after they have lost mental capacity. These decisions about treatment are referred to as ‘living wills’, or, more commonly, ‘advance directives’. Advance directives usually record decisions about life- sustaining treatments, but they can also contain the patient’s preferences and desires about a whole range of treatment matters. In Australia, the right to make an advance directive is enshrined in legislation in most states and territories as detailed below [1]. To date, the rights to make advance directives have not been extensively exercised in Australia. The evidence from Aus- tralia, and from other jurisdictions, is that the legal recognition of advance directives does not automatically mean that they are widely understood or employed by patients, or by legal and health professionals. Nevertheless, advance directives have the potential to be very useful tools, particularly given the ageing of the population and the increasing frequency of highly inva- sive life-sustaining treatments at the end of life. This article describes the legal basis of advance directives, at common law and under the various pieces of legislation across Australia. It reviews the current use of advance directives and argues that there may be barriers to advance directives being used effectively in Australia. The article concludes with some discussion of future directions and argues that the way forward is not to rely solely on advance directives but to see them as one tool in a range of techniques that are available in advance care planning. Advance directives at common law The right to refuse medical treatment is an extension of the right of all persons to control their bodies. This right is a fun- damental common law concept reflected in all common law jurisdictions, like Australia, England and Wales, New Zealand, Canada and the United States [1]. Advance directives are one way that a person’s decision to refuse treatment can be exercised. There has been no clear statement from higher courts in Australia about the require- ments for making an advance directive at common law. How- ever, the Australian High Court has strongly endorsed the right to control one’s body and the common law principles from other jurisdictions, particularly the United Kingdom, are likely to be adopted in Australia [2]. Three case examples are con- tained in Box 1. There is no single approved method of making an advance directive at common law. Rather, the lessons from other jurisdictions show us that there are three main issues to consider at common law when examining the validity of an advance directive [1,2]. They are: 1. Was the patient competent when they made their directive? The person must have been mentally competent at the time the decision was made. In Australia most jurisdictions presume that everyone over the age of 16 years is competent to make medical treatment decisions. Therefore, if a patient has made an advance directive when an adult the law presumes that the patient was competent at the time they made the directive [4,5]. That presumption can be rebutted by evidence showing that patient was not competent when the directive was made. In Australia the test for capacity which is used is the functional competency test, which is based on whether the patient could understand the nature and effects of the treatment being offered, and then weigh those issues together to communicate a decision [5]. 2. Was the directive intended to apply in the current situation? The issue here is whether the directive should be applied in the current set of circumstances. People considering the applicability of a directive need to look at how the directive was expressed, the language that was used and the seriousness of the decision- maker. Oral directives might be harder to judge in this context Correspondence to: Associate Professor Cameron Stewart, Division of Law, Macquarie University, NSW 2109, Australia. Email: cameron.stewart@law.mq.edu.au