Key legislation and terminology
Western Australia’s laws relating to withholding and withdrawing life-sustaining treatment and guardianship are contained in the Guardianship and Administration Act 1990 (WA) (the Guardianship Act).
The term ‘treatment’ is defined in the Act to mean medical or surgical treatment, including life-sustaining treatment and palliative care, or any other health care.
The Act also refers to a ‘treatment decision’, which means a decision to consent or refuse consent to the commencement or continuation of any treatment of the person.
Substitute decision-making in Western Australia at the end of life
When will a substitute decision-maker be needed to make treatment and health care decisions for another person at the end of life?
A person is presumed to have capacity to make treatment and health care decisions. A person will no longer have capacity if they are unable to make reasonable judgments in relation to the proposed treatment. Where this occurs, and the person does not have an Advance Health Directive detailing their wishes about the proposed treatment, a substitute decision-maker may need to make the health care decision on the person’s behalf. This situation may arise when a person nears the end of their life.
Who can be a substitute decision-maker for treatment and health care decisions at the end of life?
If the person who has lost capacity has an Advance Health Directive giving a direction about the health care or treatment in question, that direction must be followed. If the person does not have an Advance Health Directive, the first person on the following list who is available, willing and able to act can be a substitute decision-maker, and make health care decisions or provide consent to health care for a person with impaired capacity (in order of priority):
- An Enduring Guardian appointed under an Enduring Power of Guardianship by the person when she or he still had decision-making capacity. An Enduring Guardian must be over 18 years old and have full capacity. Further information about how to make an Enduring Power of Guardianship is available from the Office of the Public Advocate.
- A guardian or guardians appointed by the Western Australia State Administrative Tribunal (SAT). Anyone over the age of 18 who consents to being appointed as a guardian may be appointed, so long as the SAT believes the proposed guardian will act in the best interests of the person who has lost capacity; that the guardian’s interests will not conflict with the interests of the person; and they are a suitable person to act as a guardian. If there is no person willing, suitable or available who can act as a guardian, the Public Advocate may be appointed guardian. A guardian will have different powers depending on whether they are appointed as a plenary or limited guardian. For more information about becoming a guardian, visit the Office of the Public Advocate or the SAT.
- A default decision-maker, known as a person responsible. This will be the first person (aged over 18) in the following list who is available and willing to act:
- The spouse or de facto partner of the person if they are living together. ‘Spouse’ means a person’s husband or wife in a legal marriage, while ‘de facto partner’ refers to a person with whom they live in a marriage-like relationship (whether or not that person is of the same sex or a different sex).
- The nearest relative (spouse or de facto partner, child, parent, or sibling) of the person, who maintains a close relationship with him or her.
- An unpaid primary provider of care and support (including emotional support) to the person.
- Any other person who has reached 18 years of age and maintains a close personal relationship with the patient.
If there is no one available or suitable in this list and a treatment decision is needed, the health professional can apply to the SAT for the appointment of a guardian.
Substitute decision-making by Western Australia's guardianship bodies
What is the role of the Western Australia State Administrative Tribunal (SAT) in relation to decision-making at the end of life?
The SAT may be involved in many stages of the decision-making process, including providing directions to Enduring Guardians and guardians, determining who should make a treatment decision, and appointing or revoking a guardian or enduring guardian.
The SAT does not have power to refuse or withdraw consent to life-sustaining treatment, or to consent to health care generally. But it does have a supervisory role in relation to ensuring a guardian is acting in a person’s best interests.
For example, if anyone is concerned about how the power is operating they can make an application to the SAT. The Tribunal can give directions about the exercise of guardianship or an Enduring Power of Guardianship. It can also make orders about the functions of guardians.
For more information about the SAT’s role, visit the SAT.
What is the role of the Public Advocate in relation to decision-making at the end of life?
The Public Advocate is an independent office created under the Act. The Public Advocate can be appointed as guardian for a person who has lost capacity if no one else is suitable, willing and available. As guardian, the Public Advocate is often given authority to make treatment and health care decisions.
For more information on the role of the Public Advocate and decision-making processes in relation to treatment, visit the Public Advocate’s website.
Treatment decision-making by a substitute decision-maker
What treatment decisions can a substitute decision-maker make?
A substitute decision-maker with authority to make treatment decisions can make decisions about any treatment and health care decisions except sterilisation. These include decisions about consenting or refusing consent to the commencement or continuation of any treatment, and decisions about medical or surgical treatment or health care, including a life-sustaining measure or palliative care.
In the case of a guardian or Enduring Guardian however, the decisions which can be made will depend on the powers granted to the guardian by the SAT, or to the Enduring Guardian in an Enduring Power of Guardianship.
Where a guardian is a plenary guardian, they will have all the powers a parent would if the person with impaired capacity were their child. This means they will be able to make most medical treatment decisions, including decisions about withholding and withdrawing life-sustaining treatment.
If a person is appointed a limited guardian, they will only have the powers which are granted to them by the SAT.
How do substitute decision-makers make decisions?
When making a treatment decision, a substitute decision-maker must act in the best interests of the person who has lost capacity.
The Act does not define ‘best interests’, but sets out criteria for when a guardian will be acting in the person’s best interests. This includes acting:
- as an advocate for the person who has lost capacity;
- in a way that protects the person from neglect, abuse or exploitation;
- in consultation with the person and taking his or her wishes into account;
- in the least restrictive manner; and
- in a way that maintains the supportive relationships and cultural, linguistic and religious environment of the person.
If an enduring guardian or guardian requires assistance in their role they can contact the Office of the Public Advocate.
Can health professionals withhold or withdraw treatment without the consent of a person’s substitute decision-maker?
A health professional is under no duty to treat a person (even if requested by a substitute decision-maker) if the treatment would be of no benefit, not in the person’s best interests, or futile. In this situation there is no obligation for a health professional to obtain consent to the withholding or withdrawing of such treatment (though, as a matter of practice they may wish to do so).
Who makes decisions about life-sustaining treatment in an emergency situation?
If a person without capacity requires urgent treatment and it is not possible for a health professional to determine whether or not the person has an Advance Health Directive, or to obtain a decision from a substitute decision-maker, the health professional can provide the treatment without obtaining consent.
‘Urgent treatment’ includes treatment needed to save the person’s life, prevent serious damage to the person’s health, or to prevent the person suffering significant pain or distress.
A health professional will be responsible for determining if the treatment is urgent – and what consent procedures need to be followed.
Complaints and dispute resolution
Treatment decision-making at the end of life can be a very challenging and emotional time for the patient, their family and friends, substitute decision-makers and health professionals, and sometimes disagreements or concerns arise about decision-making for the person.
If anyone (including a health professional) is concerned about a substitute decision-maker or disagrees with the decisions being made, or a decision cannot be reached about care and treatment, a person can apply to the SAT to review, amend or revoke the guardianship order or enduring power of guardianship, or seek directions. The Supreme Court also has power to hear disputes about end of life treatment.