New AHD

The new Advance Health Directive (AHD)

Introduction

The final report of the ministerial expert panel on Advance Health Directives (AHDs) was published in August 2019. It made a number of recommendations, including about the content of the ACD form. Since the existing form had a number of shortcomings, an overhaul was welcome.

The Department of Health ran a series of forums, workshops and focus groups to consult with stakeholders from many constituencies, including community groups (such as DWDWA), health and aged care workers, health professionals and palliative care providers. After a lengthy gestation period the new form was launched by the Minister for Health on 22 August 2022.

The new AHD form is an improvement on its predecessor, but it is much longer. Combined with the lengthy departmental guides that go with it, this may make it daunting for some people. The information that follows and the sample AHD on this website are intended to make completing the new form more manageable.

The statute that governs AHDs is the Guardianship and Administration Act 1990 (the Act). The new AHD has not brought about changes in the Act apart from the amendment to the regulations that now specifies the new AHD as the “form prescribed by the Act”, instead of the old form. However, because the Act requires an AHD to be in the form or substantially in the form prescribed, an AHD on the old form will still be valid and enforceable provided that it complies with all of the requirements of the Act. Essentially these are that the maker must be an adult with the capacity to understand the nature and effect of an AHD; there must be at least one treatment decision specified; and the form must be properly executed and witnessed.

It is a good idea to update your AHD from time to time as your health circumstances change. When you do this, DWDWA recommends that you update your AHD using the new form. Because the form has become widely accepted by and familiar to palliative care and other health professionals, they will be able to navigate more easily around it in order to find and interpret your treatment decisions and the circumstances in which they apply. This may be particularly important in an emergency.

Similarities and differences between the old AHD and the new AHD forms

Similarities

Both forms have mandatory requirements:

Personal and contact details that you must complete;
You must specify at least one treatment directive and the circumstances in which it applies; and
Execution and witnessing in accordance with the Act.

It is also a requirement that the form provides the opportunity to state:

Whether you obtained help or advice in completing the form, e.g. a translator, or medical and/or legal advice; and
Whether you have appointed an enduring guardian, and if so, the guardian’s contact details and where the deed of appointment can be found.

You do not need to fill in these details if you don’t want to.

Differences

Parts 2 and 3 in the new AHD are optional and you should cross them out if you do not wish to complete them.

Part 2 asks what your major health conditions are, and what is important to you when talking to your medical professionals about them.

Part 3 asks about your values and preferences –

What does ‘living well’ mean to you;
Things that worry you about becoming ill or injured;
Where would you like to be when nearing death; and
What’s important to you when nearing death.

Although it is not mandatory to complete these parts it is a worthwhile exercise to do so. The information you provide will help your health professionals get to “know” you as a person and the things that matter to you, so that if there is any ambiguity or lack of clarity in your treatment decisions these can be interpreted in the context of that information.

The content of Part 4 – regarding your treatment decisions and the circumstances in which they will apply – is similar in both the old and the new AHD, but the layout in the new form has changed. You may complete either the “tick-a-box” options provided or describe your decisions in your own words, or both. This is a great improvement on the old form because it is easy to follow and comprehensive.

You must make at least one treatment decision for your AHD to be valid and effective.

Part 4.3 of the new AHD is about medical research. DWDWA does not think that an AHD is the appropriate place for a lengthy questionnaire on this topic and you should delete it if you do not wish to complete it. If you wish to make a statement in principle about research - or about a related issue such as organ donation – this could be included in the ‘Values’ section in Part 3.

3. Why is there a DWDWA version of the official form

The AHD form on this website is slightly different from the official form.

The main change is the deletion of the first section of Part 4.1, which provides five tick-a-box options about life-sustaining treatments. These options may be attractive at first glance as they look like an easy alternative to having to consider the lengthier second section of Part 4.1, but options 2 and 3 are problematic.

The five options (with DWDWA comments in brackets) are:

I consent to all treatments aimed at sustaining or prolonging my life. (This is clear)
I consent to all treatments aimed at sustaining or prolonging my life unless it is apparent that I am so unwell from injury or illness that there is no reasonable prospect that I will recover to the extent that I can survive without continuous life-sustaining treatments. In such a situation, I withdraw consent to life-sustaining treatments. (This is insufficiently nuanced because there may be other circumstances in which you would withdraw consent to such treatments – e.g. that you are unable to live independently, you do not recognise your loved ones, or you are unable to communicate effectively).
I refuse consent to all treatments aimed at sustaining or prolonging my life. (This may have unintended consequences, for example if you have mistakenly assumed that the option relates to circumstances where you are already terminally ill. Clearly if you have made the AHD and gone into hospital for hip surgery, you will want to be resuscitated if you go into cardiac arrest – but this is contrary to the absolute nature of the directive.
In a different scenario, you may have cancer and have agreed to treatment (perhaps to please your family) but do not want any intervention that will artificially sustain your life. The ambiguity between agreeing to treatment but not wanting life-sustaining treatment will be unhelpful to your medical team, especially in an emergency.
I make the following decisions about specific life-sustaining treatments as listed in the table below. (This option is fine as it directs you to the next section.)
I cannot decide at this time. (This option is clear but because there is no treatment decision it has the effect of converting a statutory binding instrument into a non-binding advance care plan based on the information provided in Parts 2 and 3).

The deletion of the above options is the only substantive change made to the official form. Other changes allow you:

To include your “preferred name” on page 1; and
In the table on page 9, to state both the circumstances in which you consent and in which you refuse consent to the specific treatments listed.

The DWDWA version is still “substantially in the form prescribed” and it will be valid and binding if correctly completed and executed. A blank pdf of the form can be found here: interactive AHD form

This can be completed online apart from any deletions and the signing by you and the witnesses.

If you prefer to use the official form it can be found at https://www.healthywa.wa.gov.au/~/media/HWA/Documents/Healthy-living/End-of-life/Advance-Health-Directive.pdf

The Department of Health’s official guides to Advance Health Directives can be found here: https://www.healthywa.wa.gov.au/AdvanceHealthDirectives

Things to consider when making an AHD

Review your AHD regularly: You may be making this AHD while you are in good health, or at a time when you are suffering health issues that will affect the treatment decisions you make. In either case it is advisable to update your AHD every five years or so. Your AHD will still be legally binding if you do not do this, but may be more difficult to interpret in the light of your current health and other circumstances.

Capacity: Your AHD will apply only in circumstances where you have lost the capacity to make decisions for yourself, either permanently or temporarily.

Treatment decisions: AHDs are governed by the Guardianship and Administration Act (the Act). In making an AHD, you may consent or refuse consent to treatment in certain circumstances. You may also request specified treatment, but if providing such treatment would be unlawful or not clinically justified, your doctors will not comply with your request. On the other hand, if you refuse consent to treatment then it must not be provided, even if it might save your life – although here are some exceptions to this rule under the Act.

For instance, circumstances may have arisen since you made your AHD that you “would not have reasonably anticipated” at the time, and which “would have caused a reasonable person” in your position to have changed a particular treatment decision. An example of this is that ground-breaking treatment for your condition may have become available that did not exist when you made your AHD. You can make it clear in your AHD if you would not want such treatment in any event, but it is not clear whether that directive would be respected.

Other exceptions to the requirement that your AHD must be followed are if:

Urgent treatment is needed and it is not practicable for the relevant health practitioner to ascertain if an AHD exists; or
Urgent treatment is needed after a suicide attempt.

Your AHD should be clear and unambiguous. To assist, you should ask your own GP if they understand the treatment decisions you have made in the AHD and the circumstances in which they are to apply.

Delete parts 2 and/or 3 if you wish: Although it is not compulsory to complete Part 2 (your major health conditions and things that are important to you) and Part 3 (your values and preferences), filling in these Parts will help to clarify your own thinking regarding the treatment decisions that you specify and the particular circumstances that you spell out. It will also help your health professionals to understand your wishes if they are not entirely clear.

You may also use Part 3 to make requests in relation to things that are not treatment decisions per se but that will help your doctors to make informed decisions about your healthcare. An example of this might be the type of health, palliative care or aged care facility that would or would not be acceptable to you. There are other examples in the sample AHD that you can access via the link below.

Part 4 – Treatment decisions: For your AHD to be valid and binding, you must make at least one treatment decision in Part 4.1 and/or 4.2

It may help you in making your decision to consider what treatment you would want in the following circumstances:

If you are seriously ill or incapacitated (from whatever cause) and unlikely to recover sufficiently to live independently;
If you have a stroke or dementia or other condition so that you no longer recognise the people you know and/or are unable to live independently;
If you are in a coma from which you are likely/unlikely to recover; or
If you have a terminal illness.

Would your decisions be different depending on:

Whether you are likely/not likely to return to a high level of function;
Whether your condition is reversible/irreversible;
The prognosis of how long you are likely to live; and/or
The quality of your life?

Part 4.1 provides a helpful list of life-sustaining treatment options for you to consider.

Part 4.2 gives you the ability to add treatment decisions about other treatments (life-sustaining or non-life-sustaining) that you wish to include.

Part 4.3 provides the option of consenting or refusing consent to participate in medical research. You may consider that it is not appropriate to document these decisions in an AHD, and in such case you should delete the whole of Part 4.3.

Voluntary assisted dying (VAD)

As the law stands at present, VAD is not a treatment option that you may consent to in an AHD, because you must have ‘enduring capacity’ throughout the process. However, in your AHD you may request terminal palliative sedation (TPS) as soon as your attending doctor deems it to be clinically justified. Wording for a suggested request for TPS can be found in the sample form.

DWD's Sample AHD Form

A partially completed sample of an AHD can be found here: DWD's AHD Sample form

This is only an example completed by a fictional person. Note that DWDWA’s version of the official form intentionally deletes the ‘Part 4.1 Life-Sustaining Treatment Decisions’ on page 8.

Because it is important that an AHD reflects your own considered treatment decisions in your own words, the sample provided cannot be edited or copied electronically. It does however provide some examples of what you may wish to include in Part 2 (major health conditions and things that are important to you); Part 3 (your values and preferences) and Part 4 (your treatment decisions). You may use or adapt these as you see fit.

Other parts of the form should be filled in or deleted (unless they are mandatory) at your discretion.

To ensure that your directives are clear, it is a good idea to discuss your completed AHD with your doctor or other health professional before signing it. You may also wish to take legal advice but this should only be necessary in exceptional circumstances.

Except in the unusual circumstances outlined above in Things to consider in making an AHD, no-one can override the decisions you make in your AHD. A hierarchy of decision makers if you do not have an AHD or your directives are not clear can be found here.

You may also find it useful to discuss your AHD with your family/loved ones, especially those who may have strong views about your treatment. Although they cannot override your decisions it would helpful if they can come to terms with them, to avoid conflict at a time when you most need support.

Further information can be found in the FAQs about Advance Health Directives.

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