Specialists at legal risk if patients do not have advance care directives


20 Feb 2019

Specialists are at risk of legal action if their patients do not have advance care directives in place outlining their end of life requirements, experts warn.

Patients and their carers could potentially sue for assault if given inappropriate treatment at the end of life,  according to Professor Colleen Cartwright, Professor of Aged Care at Southern Cross University and one of the architects of Queensland’s Advance Care Planning documentation.

“Practitioners should be asking their patients if they have an advanced care directive in place, not just in order to respect patient wishes, but also to protect themselves from legal risk,” Professor Cartwright told the limbic.

“There are many situations where they could be laying themselves open, for example, specialists can be sued for assault of a patient who may have been given the incorrect treatment without the consent of a legally authorised decision maker.

“Indeed, a recent survey we conducted revealed some worrying findings. When asked who the legally authorised decision maker would be in a particular situation for a patient without an existing advance care directive, only 29% of the specialists gave the correct answer.”

Her warning follows new research from Advance Care Planning Australia (ACPA) which has revealed that 70% of older Australians are without an Advance Care Directive, leaving no instructions in the event that they’re unable to make their own medical decisions.

The landmark study found that Advance Care Directives were recorded for 48% of people in residential aged care facilities, 16% of patients in hospitals and 3.2% of patients attending GPs. Some had documented their preferences for care, others had appointed a substitute decision-maker – a person legally empowered to make decisions of their behalf –  and some of whom had done both.

Professor Cartwright said there were other benefits to specialists becoming more involved in promoting Advance Care Planning.

“It’s not just about minimising legal risks, it’s also about allowing them to get on with their job in the best manner for the patient. If a practitioner knows who the legally authorised decision maker is, then they can avoid potential family arguments which can impede on patient care.”

Linda Nolte, Program Director at ACPA said hospitals were starting to embed the required systems and processes to support good advance care planning practice but there was much more to be done.

“We have a long way to go in making sure more people are empowered to make their own medical treatment decisions. We understand that some of the health funds are including advance care planning information and content on their websites, so it would be great to see this happening more.”

Both Professor Cartwright and Ms Nolte agreed that the extent to which specialists supported their patients to complete advance care planning varied across disciplines, and that increasing training for all health professionals was an important step to improving uptake.

They also agreed that advance care directives should be uploaded to MyHealth records.

“Having it accessible in MyHealth Record means that it can be found quickly when needed, at the point of care,” said Ms Nolte

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