What are they?
An Advance Health Directive is a device created by the Guardianship and Administration Act 1990 (WA).
In other jurisdictions they can be known as ‘Advance Care Directives’.
An Advance Health Directive is a written document which explains how you wish to be treated in the future should you be incapable of making informed decisions. They are the first port-of-call when a patient lacks capacity to consent to medical treatment. You can set out what treatments you consent to, or refuse to consent to, and how you would like to be treated.
How do you make an Advance Health Directive?
An Advance Health Directive must be in the form prescribed by the Guardianship and Administration Regulations 2005. You must be of full legal capacity to make an Advance Health Directive and the legislation specifically encourages persons to seek legal advice (Guardianship and Administration Act 1990 (WA) ss 110P and 110Q(1)).
It is important to have legal advice when making an Advance Health Directive as any treatment decision in the document is invalid, if (Guardianship and Administration Act 1990 (WA) s 110R):
- the decision was not made voluntarily;
- the person was coerced into making the decision; or
- the person didn’t understand the nature of the decision or the consequences when they made the Advance Health Directive.
A legal practitioner can help by ensuring you are fully informed, and understand the nature and consequences of the decision, as well as making sure you make the decision voluntarily and are not coerced.
Challenging an Advance Health Directive
Advance Health Directives are at the top of the hierarchy when it comes to deciding treatment. For example, if a person who is incapable of making treatment decisions has a valid Advance Health Directive, and has a guardian appointed, the Advance Health Directive will prevail. Therefore, it is frequently the case that Advance Health Directives come under challenge.
In Hunter v New England Area Health Service [2009] NSWSC 761 the plaintiff sought declarations that it was justified in complying with the unconscious defendant’s wishes to refuse life-sustaining treatment, relying on a valid advanced care directive.
It was held that:
- If there is a genuine and reasonable doubt as to the validity of an advance care directive, a hospital or medical practitioner should apply promptly to the court for determination of the validity and operation of the advance care directive.
- The emergency principle justifies the hospital or medical practitioner to continue treatment until the decision of the court.
- An apparently valid consent by a capable adult may be ineffective if it does not represent the independent exercise of the person's volition; if the person's will has been overborne; or the decision is the result of undue influence or some other vitiating circumstance.
What if there is already a public guardian?
In FI v Public Guardian [2008] NSWADT 263 the tribunal had to consider where the public guardian could approve an Advance Care Plan which permitted life-sustaining treatment to be withdrawn. It was held that the public guardian cannot make an Advance Care Plan for a represented person. However, a guardian can make decisions that involve withdrawing life-sustaining treatment so long as the decisions are made in the best interests of the represented person.