Advance directives and the persistent vegetative state in Victoria: a human rights perspective

Abstract

With advances in medical technology, it is now possible to sustain the life of a person in a persistent vegetative state (PVS) until a decision is made to withhold or withdraw life-sustaining treatment. Who makes that decision? Under the Medical Treatment Act 1988 (Vic) there is no legally enforceable right for a person to choose, in advance, what intervention that person will and will not accept if he or she ends up in a PVS. The best that can be achieved is that a person can appoint an agent who is empowered to refuse medical treatment on the person's behalf in the event of incompetence. It is suggested that this mechanism ignores two fundamental human rights: self-determination and the inherent right to dignity. This article proposes the development of an advance directive mechanism that provides for a person to refuse, in advance, specified intervention, thereby respecting fundamental human rights and alleviating the existing need for an agent to second-guess a person's desires and best interests.