Advance directives refusing treatment: a proposal for New Zealand

Healthcare consumers in New Zealand may make advance directives (ADs) in accordance with the common law under the Health and Disability Commissioner Code of Health and Disability Services Consumers’ Rights Regulations 1996 (Code of Rights). An AD is a choice about future health care intended to be effective when a consumer becomes incompetent. An AD is challenging to implement because of questions about its validity and applicability. There is a lack of clarity about its binding status in New Zealand and measures to create and implement them. Some jurisdictions, such as England and Wales, and Australia, have sought to clarify the use of ADs through statutory regulation. Should New Zealand adopt a similar approach? Or is there a preferable alternative utilising the existing legal regime? This article considers the statutory approach and argues that instead of enacting a new statute to govern ADs, the preferred option is to establish a special regime for consumers wishing to use ADs, using a nationwide pro forma. This proposal is consistent with the patient-centred aims of the Code of Rights, which has its genesis from health law reforms following the Cartwright recommendations. Additionally, the proposed regime can be integrated into the existing framework of the Code of Rights, which retains the flexibility of making ADs under the common law and circumvents the limitations of the statutory approach.