Information about advance directives
An advance directive is a statement signed by a person setting out in advance the treatment they do or don’t want if they become unwell in the future and are considered unable to give consent.
On this page:
Legal status of advance directives
Making a plan – advance directives
Encouraging family, whānau to help in creating an advance directive
Certifying competence for an advance directive
Diminished competence and advance directives
Validity of an advance directive
Applying an advance directive
Advance directives that refuse medical treatments
For more information about your rights please visit the Health and Disability Commissioner website.
Legal status of advance directives
Advance directives are allowed in New Zealand under common law, which mean that, while there is no law that specifically allows advance directives, people have always had the right to make choices about the treatment they receive. The Code of Rights supports that right.
Advance directives have not yet been tested in New Zealand Courts.
Making a plan – advance directives
Everyone has the right to make choices about their future health care.
An advance directive is a statement signed by you setting out the treatment you do or don’t want if you become unwell and are considered unable to give consent.
Advance directives can be verbal but written ones are better. You can make an advance directive on your own or with your doctor. If you make your advance directive with your doctor, it may increase the likelihood that the mental health service acts in accordance with the directive.
An advance directive only applies when a person is considered not competent to make decisions about their health care. When the person is competent again, an advance directive does not apply.
Under the Code of Health and Disability Services Consumers’ Rights (the Code of Rights), health providers must take your advance directive seriously if they believe you had enough information and were competent at the time you made the directive. However, your advance directive can be over-ridden if you are subject to compulsory assessment or treatment under the Mental Health Act.
If a doctor does not follow an advance directive, ask them to explain their decision, in person and in writing. If you do not accept the explanation, you can make a complaint.
An advance directive is valid until you change or cancel it or it expires and is not renewed. (You can include an expiry date in your advance directive.)
How to make an advanced directive:
- Discuss it with your family, whānau– they should understand what treatment is wanted and why. (They may feel in a difficult position if they find out that treatment they disagree with is being provided, and health professionals may also feel they are put in a difficult position if this occurs.) If you want someone to have a specific role in your treatment, talk to them first to get their agreement.
- Make it when you are well – if you make an advance directive when you are very unwell, your competence to make it is more likely to be challenged and it may not be followed. Circumstances can change, so you should review an advance directive at least once a year.
- Write it down – an advance directive is more likely to be followed if it written down, so that doctors who are involved in your treatment can read it and know what treatment was agreed to and what treatment was refused. You can use this advance directive form. You don’t need a lawyer.
- Get it signed – discuss your treatment choices with your doctor, and ask them to sign the advance directive to confirm that you are competent to make health treatment decisions, have enough information to decide about your treatment and can make decisions of your own free will. The doctor doesn’t have to agree with the choices that you make.
- Give copies to people involved – ask your doctor or mental health worker to put a copy in the front of your medical file and give a copy to family, whānau members, anyone who is named for a specific role in crisis treatment and anyone who has an enduring power of attorney.
Download our brochure: Advance directives in mental health care and treatment: Information for mental health service users (PDF, 517kb)
Read our information for service providers on advance directives.
Encouraging family, whānau to help in creating an advance directive
Where there is reason to anticipate some future loss of competence, it’s important that health care workers or family raise this matter in a timely and considerate fashion.
Often, by the time family, friends or caregivers become seriously concerned about the competence of a person, 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.
The involvement of family in drawing up an advance directive will make it easier when health professionals have to implement it. It can be difficult if the family does not support it or is not aware of it.
Providing clinical information to help someone make an advance directive is a health service, and the Code of Rights applies.
Certifying competence for an advance directive
A health professional may be asked to sign an advance directive to certify that a person is competent.
Most people with mental distress are competent all of the time, and almost everyone is competent most of the time. Being competent means that a person:
- understands their diagnosis and previous treatment (although they may disagree with the diagnosis)
- can make choices by weighing up different options
- understands the consequences of their decisions.
Right 7(2) of the Code of Rights 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.”
Clinicians are not required to agree with all choices that are made in order to sign that someone is competent. A person 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 person’s capacity or susceptibility to undue influence, based solely on personal feelings about the correctness of the person’s choice.
Diminished competence and advance directives
Depending on the nature of the health care choice, diminished competence will not necessarily invalidate an advance directive. Certain choices may still be valid. For example, an advance directive might instruct future providers not to administer any medication to a person, or it might refuse to allow students to be present during any procedure. While it might be shown later that the person 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 Code of Rights 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.”
Validity of an advance directive
To be valid, an advance directive depends on:
- competence – the person was competent to make the directive when they made it
- freedom from undue influence – the person made the directive of their own free will, not because clinicians or family were telling them what to do
- sufficient information – the person was aware of their options, what the research says, side-effects, likely course of their condition and so on
- whether the person intended their directive to apply to the present circumstances
- a set period of time, if indicated.
If an advance directive meets all these criteria, it is valid, even if the clinician disagrees with the choices that are made, and they should not provide services in contradiction to an advance directive. If the advance directive requires or prohibits a procedure that the clinician cannot perform or withhold because of personal beliefs, the care of the person should be passed to another provider.
As a clinician, if you do not follow an advance directive, it is advisable to explain your decision in person and in writing.
Applying an advance directive
If a person is not subject to compulsory assessment or treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992, clinicians should follow an advance directive unless they have good evidence of at least one of the following conditions:
- The advance directive was not valid.
- The treatment the person consented to is not useful (clinically indicated) for treating their condition.
- The treatment that was refused is the only good treatment if that person is a danger to themselves or others.
- The treatment they want is not provided by the public health system or cannot be provided at the time when the advance directive would apply.
Clinicians can only apply an advance directive if the mental distress means that a person 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 person in the usual way.
Clinicians can over-ride an advance directive if someone is under the Mental Health Act 1992 but must still seek the person’s agreement to all aspects of treatment, as they would at any other time. However, a person can be competent even if they are under the Mental Health Act – compulsory treatment does not make people legally incompetent.
Advance directives that refuse medical treatments
Right 7(7) of the Code of Rights 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 people to use advance directives to refuse treatment in the event that they become incompetent or unconscious.
Any unreasonable interference with the person’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 person’s life, a clinician is advised to consider the advance directive in light of the 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 person’s intention and reasoning when creating the advance directive. For example, a provider may find that a person was not aware of particular medical information when making the advance directive but consultation may reveal that the new information would not have affected the person’s choice.
