In Western Australia a person can make an ‘Advance Health Directive’ (a statutory Advance Directive).
Advance Health Directives are created and regulated by the Guardianship and Administration Act 1990 (WA).
Does Western Australia have both common law Advance Directives and statutory Advance Directives (Advance Health Directives)?
Yes. A person may create both a common law Advance Directive and/or a statutory Advance Directive (an Advance Health Directive), and both types of directives are recognised by the law in Western Australia.
When will an Advance Health Directive apply?
An Advance Health Directive will only operate when the person loses the capacity to make reasonable judgments in relation to the treatment dealt with by the directive.
What can an Advance Health Directive cover?
An Advance Health Directive can be used to make decisions to consent or refuse consent to the commencement or continuation of any treatment. ‘Treatment’ is defined to include medical or surgical treatment, including palliative care and life-sustaining treatment, dental treatment, or other health care.
It cannot be used to require a person be provided treatment which is not medically indicated.
What are the formal requirements to make an Advance Health Directive?
The person must:
- be over the age of 18 years;
- have capacity;
- understand the nature of the decision being made and its consequences;
- make the Directive voluntarily and not as the result of inducement or coercion; and
- be encouraged to seek legal or medical advice.
An Advance Health Directive must be:
- in the prescribed form or substantially in the prescribed form;
- signed by the person or someone directed to sign by the person in the person’s presence; and
- witnessed by two people who are over 18, one of whom is authorised to take declarations e.g. a Justice of the Peace. For further information about witnessing requirements visit the Office of the Public Advocate.
Does a person have to receive information about the treatment he or she is requesting or refusing in an Advance Health Directive?
No. However the legislation states that a person is 'encouraged to seek legal or medical advice' about the effect of the Advance Health Directive and the treatment being refused or requested.
Can someone be appointed in an Advance Health Directive to make substitute decisions for the person?
No. However, a person may also want to appoint an Enduring Guardian to make decisions for them about treatment if they no longer have capacity to make decisions for themselves. To do this the person must complete an Enduring Power of Guardianship.
If a person has an Advance Health Directive which makes a specific treatment or health care decision, this will take priority over the decisions made by an Enduring Guardian.
Can an Advance Health Directive be revoked (cancelled)?
Yes. If the person changes his or her mind about the directions in an Advance Health Directive this will constitute a revocation (cancellation) of the Directive. There are no formal requirements for revocation. However the person must communicate either orally, in writing, or in some other manner that they have revoked the Directive.
Can a health professional decide not to follow an Advance Health Directive?
A health professional may not follow an Advance Health Directive if circumstances exist or have arisen that:
- the person would not have reasonably anticipated when he or she made the Advance Health Directive; or
- would have caused a reasonable person to have changed his or her mind about the direction.
To determine if the circumstances have changed, the health professional must consider the following:
- the person’s age when he or she made the Advance Health Directive and his or her age now;
- the period of time between when the Advance Health Directive was made and now;
- whether the person reviewed the Advance Health Directive since it was made and, if so, when; and
- the nature of the person’s condition requiring treatment, the treatment required, and the consequences of providing or not providing that treatment.
A health professional may consult with substitute decision-makers, family or friends to determine whether the circumstances have changed. Ultimately if the treating health professional is not able to follow the AHD, then he or she should seek consent from a substitute decision-maker.
For more information on Advance Directives in Western Australia, visit the Western Australian Department of Health.