Guide for Clinicians
- Legal Information
- The Form
- Three main roles for clinicians
- Providing information about diagnosis and treatment
- Certifying competence
- Diminished competence
- Applying an advance directive
- A clinician’s general obligation to follow an advance directive
- A clinician’s obligation when someone is under the Mental Health Act
- Advance directives that refuse medical treatments
- Helping a service user to create and maintain an advance directive
- Where to keep an advance directive
- More Information
Three main roles for clinicians
Clinicians have three main roles in advance directives:
1. providing information about diagnosis and treatment
2. certifying competence
3. applying or following advance directives
Providing information about diagnosis and treatment
This should happen in the normal course of treating a service user. In addition, Right 6 of the Code of Health and Disability Rights is the right to be fully informed.
Certifying competence
A clinician may be asked to sign an advance directive to certify that a service user is competent. Being competent means that a service user:
1. understands his or her diagnosis and previous treatment (though s/he may disagree with the diagnosis)
2. can make choices by weighing up different options
3. understands the consequences of his or her decisions.
Clinicians are not required to agree with all choices that are made, in order to sign that someone is competent. Service users might not agree with the diagnosis nor with the treatment that you would prefer them to receive. Holding different views does not, in itself, make someone incompetent.
Clinicians must be careful not to draw conclusions about a service user’s capacity, or susceptibility to undue influence, based solely on personal feelings about the correctness of the service user’s choice. Right 7(2) of the Health and Disability Code states:
"Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent."
Diminished competence
Depending on the nature of the health-care choice, diminished competency will not necessarily invalidate an advance directive. Certain choices may still be valid.
Example
An advance directive might instruct future providers not to administer any medication to a service user, or it might refuse to allow students to be present during any procedure. While it might be shown later that the service user was not competent at the time to make decisions regarding medication, he or she might still have been competent to make decisions about participating in teaching programmes. Right 7(3) of the Health and Disability Code states:
"Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence."
Applying an advance directive
There has been little New Zealand law on advance directives. However, the Minister of Health explicitly wanted a person’s right to make an advance directive to be
"expressed in a manner that is compatible with the common law on advance directives, and that does not inadvertently restrict the rights consumers already have to use advance directives”.
Validity of an advance directive
To be valid, an advance directive depends on:
- competence - whether the person was competent to make the directive when they made it; and
- freedom from undue influence – whether the person who made the directive was free from undue influence; and
- sufficient information – whether the person had sufficient information to make the particular directive they made; and
- application to current circumstances – whether the person intended their directive to apply to the present circumstances.
If an advance directive meets all these criteria, it is valid, even if clinicians or family disagree with the choices that are made.
A clinician’s general obligation to follow an advance directive
When a provider personally agrees with the consumer's advance directive or choice, these questions are rarely raised. A subsequent claim by the consumer that the advance directive was not meant to be followed would understandably be met by an argument that there were no reasonable grounds on which to question the directive's validity. The same argument must apply whether or not a provider personally agrees with the consumer's decision. Regardless of the professional's personal belief about the correctness of the consumer's choice contained in the advance directive, the professional cannot ignore the advance directive unless there are reasonable grounds to doubt one of the four factors governing validity. This does not mean that a medical professional, who is called to implement an advance directive, must act contrary to his or her ethical beliefs. It simply means that they should not provide services in contradiction to an advance directive unless there are reasonable grounds to doubt the validity of the advance directive. If the advance directive requires or prohibits a procedure that the medical professional cannot perform or withhold because of moral or religious belief, then the care of the consumer should be passed to another provider.
If, as a clinician, you do not follow an advance directive, it is advisable to explain your decision in person and in writing.
A clinician’s obligation when someone is under the Mental Health Act
Clinicians can override an advance directive if someone is under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH Act). However, clinicians must still seek the service user’s agreement to all aspects of treatment, as they would at any other time.
Doctors can only apply an advance directive if the illness means that a service user cannot make or communicate decisions about treatment. An advance directive stops being applied when someone is competent again, because they can then make their own decisions. Clinicians should then discuss treatment with the service user in the usual way.
The Mental Health Commission recommends that service users make an advance directive even if they may be placed under the MH Act in future. At the very least, an advance directive tells you what treatments the service user wants.
Advance directives that refuse medical treatments
Right 7(7) of the Health and Disability Code states:
"Every consumer has the right to refuse services and to withdraw consent to services".
This was included in the Code in recognition of section 11 of the New Zealand Bill of Rights Act 1990, which states:
"Everyone has the right to refuse to undergo any medical treatment".
Therefore, the Code enables consumers to use advance directives to refuse medical treatment in the event that the consumer becomes incompetent or unconscious.
Any unreasonable interference with the consumer's valid advance refusal of treatment will be a breach of the Code. When considering section 11 of the Bill of Rights Act, the New Zealand courts have said that a person has to be competent to exercise their right to refuse medical treatment.
When the situation involves the refusal of treatment or care necessary to save the consumer's life, a clinician is advised to consider the advance directive in light of the four factors governing validity.
In these situations it is advisable for the clinician to take reasonable actions to consult with people who could provide information about the consumer's intention and reasoning when creating the advance directive. For example, a provider may find that a consumer was not aware of particular medical information when making the advance directive. However, consultation may reveal that the new information would not have affected the service user’s choice because it may have been based on religious beliefs or quality of life choices.
If a provider wished to argue that a consumer's lack of specific medical information invalidated an advance directive, it would have to show that this information was likely to have been relevant to the consumer's decision.
Helping a service user to create and maintain an advance directive
If a service user wants to make an advance directive, encourage them to involve the responsible clinician, to help ensure that decisions are informed and workable. That also provides:
- a witness as to the consumer's competence to make the decision;
- some protection from the possibility of undue influence
- safeguards to ensure that the decision is made with the relevant medical information
- a source of advice to other providers as to whether any new medical information would have affected the consumer's decision
- a means of regularly reviewing and updating the decision
- a witness as to the types of situation the consumer intended to cover
- a means of ensuring that the directive contains sufficiently accurate instructions for other providers.
Often, by the time family, friends or caregivers become seriously concerned about the competence of the consumer, it is too late for the person to make an advance directive or to assign power of attorney in relation to personal care and welfare.
For this reason, it is important that those caring for people with chronic mental health problems, where there is reason to anticipate some future loss of competence, should raise these matters in a timely and considerate fashion.
The involvement of friends or family will also reduce risk to clinicians, who may have to implement the advance directive. A clinician can be put in a difficult position if immediate family have not been told about the advance directive by the service user.
Providing medical information to help someone make an advance directive is a health service, and the Health and Disability Code of Rights applies to this service too.
Where to keep an advance directive
The Mental Health Commission advises service users to ask their clinician or case manager to put a copy of the advance directive at the front of their medical file. They could also give a copy to:
- family/whānau members
- anyone who is named for a specific role in crisis treatment
- anyone who has an enduring power of attorney
More Information
Clinicians are advised to contact the Health and Disability Commission for more information, or their professional bodies, including:
- The Royal Australian and New Zealand College of Psychiatrists
- Te Ao Maramatanga, the New Zealand College of Mental Health Nurses
- New Zealand Nurses Organisation
Contributors
The Mental Health Commission thanks the Royal Australian and New Zealand College of Psychiatrists for their advice and comments on the material on this page.
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