Statutory Advance Health Directive
The Guardianship and Administration Act 1990 (WA) provides for a person to make an Advance Health Directive (‘Directive’). An individual who is 18 years and over with ‘full legal capacity’ is able to make a Directive which sets out treatment decisions in relation to their future medical treatment. An individual can consent to certain future treatment, or refuse consent for certain future treatment.‘Treatment’ includes medical and surgical treatment (including life sustaining measures and palliative care), dental treatment and other health care.
Requirements of a Valid Directive
In order for a Direction to be valid:
- it must be made signed by a person 18 years or over with full legal capacity;
- it must be made voluntarily;
- it must be in the form prescribed by regulation; and
- it must be witnessed by two persons.
Legislation also requires that the person who is making the Directive be encouraged to seek legal or medical advice, though a failure to do so will not invalidate the Directive.
A treatment decision in a Directive will only be valid if at the time of creation the maker understands the nature and consequences of the treatment decisions.
Revoking a Directive
A treatment decision in a Directive is taken to have been revoked if the maker changes his or her decision about the treatment subsequent to making the Directive. The Western Australian State Administrative Tribunal (‘SAT’) may make a declaration that a particular treatment decision has been revoked in this way.
Note that the appointment of a guardian under an enduring power of guardianship by the maker subsequent to the creation of a Directive does not mean that the Directive is taken to have been revoked (as long as the maker has not changed his or her mind about the content of the Directive).
A treatment decision in a Directive comes into operation at any time that the maker lacks capacity and is unable to make reasonable judgments about that treatment. When in operation, the decisions in the Directive are taken as if they are made at the time of the treatment, and as if the maker had full legal capacity.
Note that a treatment decision in a Directive operates only in relation to the specific circumstances identified in the Directive.
If a patient is unable to make reasonable judgments in respect of any proposed treatment, and a valid Directive exists in relation to that treatment, the decision as to whether or not to apply the treatment must be decided in accordance with the treatment decision in the Directive.
However, there may be an instance where a patient requires urgent treatment and is unable to make reasonable judgments in relation to that treatment. In the circumstance where it is not possible for the treating health professional to determine if there is a valid relevant Directive, nor is it possible for the health professional to obtain a treatment decision from the patient’s guardian, enduring guardian or person responsible then treatment may be provided in the absence of a treatment decision.
In addition, there may be a situation where a health professional reasonably suspects that a patient who needs urgent treatment and is unable to make reasonable treatment judgments has attempted to commit suicide. In this instance, treatment may be provided by a health professional despite the existence of a relevant and valid Directive, or the existence of a relevant treatment decision made by the patient’s guardian, enduring guardian or person responsible.
Common Law Advance Health Directive
The Act preserves the common law concerning an individual’s right to make treatment decisions about their future treatment. Indeeed, the Act defines an ‘advance health directive’ as including ‘a directive given by a person under the common law containing treatment decisions in respect of the person’s future treatment’ for treatment decisions in relation to patients who are under a legal incapacity. This means that the common law continues to operate with regard to advance directives in Western Australia. In 2009, the WA Supreme Court in Brightwater Care Group (Inc) v Rossiter looked at the refusal of life-sustaining treatment by a man with capacity, and found that it was valid.
An advance health directive may be valid at common law if all of the following conditions are satisfied:
1 Capacity: The adult must have had capacity at the time the advance health directive is made and is able to communicate the decision in some way.
2 Voluntariness: The directive must be made voluntarily without coercion or undue influence.
3 Specificity: The adult intended the refusal to apply to the specific situation that later arose.
There are no formal requirements at common law that that mean an advance health directive needs to be in writing and be witnessed, though these elements will be persuasive in suggesting that the directive has been made and meets the requirements.
Legislation and regulations
Further Information including relevant forms: