Advanced health directives (AHDs) are legal documents that allow individuals to make decisions about their future medical treatment in the event they become unable to communicate their preferences.
AHDs play a significant role in preserving an individual's autonomy and respecting their wishes regarding medical treatment. In this blog post, I discuss the factors that may render an AHD invalid, relying on the recent Western Australian State Administrative Tribunal decision, JH [2022] WASAT 108.
This case provides valuable insight into the criteria that must be met for an AHD to be considered valid.
Factors Affecting the Validity of an AHD
1. Voluntariness
An AHD must be made voluntarily and free from any form of inducement or coercion.
In JH [2022] WASAT 108, the Tribunal found that there was no evidence to suggest that the AHD was made involuntarily or under any form of coercion.
The decision-makers found that Ms JH had discussed her AHD with her family members, and they respected her wishes.
This supports the conclusion that the AHD was made voluntarily.
2. Understanding the Nature of the Treatment Decision and Consequences
An AHD may be considered invalid if the maker did not understand the nature of the treatment decision or the consequences of making such a decision.
In JH [2022] WASAT 108, the Tribunal found that Ms JH understood the nature of the treatment decisions and the consequences of those decisions.
The AHD in question contained simple treatment decisions—refusing consent to be resuscitated or put on life support.
The Tribunal also considered the fact that Ms JH's general practitioner witnessed the AHD, which further supports the conclusion that she understood the nature and consequences of her treatment decisions.
Legislation
In Western Australia, the validity of an AHD is governed by the Guardianship and Administration Act 1990 (WA).
The Act sets out the criteria for creating a valid AHD, including requirements related to voluntariness, understanding the nature and consequences of treatment decisions, and proper witnessing of the document.
Key take-aways
The case of JH [2022] WASAT 108 provides a useful example of the factors that the Western Australian State Administrative Tribunal considers when determining the validity of an AHD.
When drafting an AHD, it is important to ensure that the document is made voluntarily and that the individual creating the AHD understands the nature and consequences of the treatment decisions they are making.
Consulting a guardianship lawyer, like myself, can help ensure that your AHD is legally valid and reflects your wishes for future medical treatment. You can contact me here.