Workshop 2: Advance Health Directives

Dr Simon Towler was the guest speaker at DWDWA’s second workshop on 16 September 2020 on the subject of Advance Health Directives. Amongst many other roles, Dr Towler was formerly the Chief Medical Officer of Western Australia and the State President of the Australian Medical Association. As a member of the Ministerial Expert Panel on Voluntary Assisted Dying in 2018, and in his current position as the End of Life Care Clinical Lead with the Department of Health, he is particularly well placed to speak on this subject.

A second speaker at the workshop was Dinny Laurence, who presented a sample AHD containing examples of some treatment options and the circumstances in which they might apply. A sample AHD can be found here. 

You can watch the video of Workshop 2 below.

FAQs and answers about Advance Health Directives (AHDs)

IMPORTANT NOTE: While DWDWA has done its best to ensure that the advice in this document is correct, it is both general and unofficial advice, and anyone in doubt should consult the Department of Health or qualified professional advisers.

1. What is an AHD?

An AHD is a legally binding statutory instrument that sets our your decisions in relation to medical treatment at any time that you are not able to make reasonable judgments in respect of that treatment for any reason, eg that you are unconscious after an accident, in a coma or are no longer compos mentis.

2. What is the difference between an advance care plan and an AHD?

An advance care plan is generally made by healthcare professionals in consultation with you and family members, to prepare for end of life treatment. It is not a legally binding document.

An AHD is a statutory instrument which when properly executed and witnessed is at the top of the hierarchy of legal authority in relation to your end of life choices. Unlike an advance care plan, it gives legal effect to your wishes.

3. Can someone else sign the AHD on my behalf? If so, must I be present when that person signs?

If you are physically incapable of signing an AHD, you may ask someone else to sign it for you provided you still have the capacity to understand the nature and intent of the AHD. You, the person signing on your behalf and the 2 witnesses (see 5 below) must all be present when the AHD is signed.

4. If I have appointed an attorney under an enduring power of attorney (EPA) or a guardian under an enduring power of guardianship (EPG), can either of those appointees override my AHD?

No. Neither your attorney nor your guardian has the power to override your directives as set out in your AHD. An AHD only becomes effective once you have lost the capacity to make and communicate your decisions for yourself (see 1 above). If, however, the circumstances in which a certain treatment decision is to apply are not clear, or the decision itself is not clear, then your health professionals may discuss with your guardian how your wishes should be interpreted.

5. Must an AHD be on the Department of Health form or can it be in any form so long as it is properly executed and witnessed?

Your AHD must be in the form or “substantially” in the form prescribed. It will be valid so long as it satisfies all the legal requirements (eg that you are an adult, have legal capacity and have signed it in the presence of two adult witnesses, one of whom must be an authorised witness under the Oaths, Affidavits and Statutory Declarations Act 2005). It must also clearly specify your treatment decisions and the circumstances in which they will apply.  Note that if someone has signed the AHD on your behalf that person may not also be a witness.

6. Can my own doctor witness my AHD?

Yes.

7. For an AHD to be valid, is it a requirement that

a) I have read the information about advance care planning and AHDs on the Department of Health website?

b) I have first obtained medical advice and/or legal advice?

c) I have discussed my directive with any other person?

No, but it is advisable to discuss the content of your AHD with your doctor to ensure that it is clear and unambiguous, and with your family members so that they understand and, if possible, support your decisions. This will make it much easier for your health professionals to respect and carry out your wishes. Although no other person has the power to override your directives if they are lawful and validly made, there are some limitations to their operation, for example if doubts exist about capacity or possible coercion; acting in an emergency without knowledge of the existence or content of your AHD; and the age of your AHD. In particular, a treatment decision in an AHD does not operate if circumstances exist or have arisen that the maker “would not have reasonably anticipated” and “would have caused a reasonable person in the maker’s position to have changed his or her mind about the treatment decision” (G and A Act, s 110S (3)). For these reasons the statement of your chosen treatment decisions and of the circumstances in which they are to apply should be very clear.

It also helps if your AHD is updated regularly, to minimise the impression that you might not have reasonably anticipated some new circumstance that may have arisen.

8. What should I do if there is doubt about whether I have the capacity to understand the nature and effect of my AHD?

You can obtain a medical assessment if there is doubt about whether you have such capacity. There is a presumption that you have capacity unless there is evidence to the contrary.

9. What is a ‘values statement’ and is it required in an AHD?

This is likely to be included in the future as an optional part of the standard AHD in its revised form. If there is no “treatment decision” in your AHD that is specific to your medical condition, a statement about what things are important to you and what things worry you about your future may help those responsible for your treatment to make decisions that will be consistent with your values and your wishes.

At present, your values should form an integral part of any advance care plan that you may agree as part of an ongoing discussion with your health professionals and your loved ones. This is likely to assist by providing context for your AHD – see https://healthywa.wa.gov.au/Articles/A_E/Advance-care-planning – but does not replace it.

10. Is an AHD (or equivalent) from another state effective in WA if it has been properly signed and witnessed under the laws of that state?

Not without endorsement from the State Administrative Tribunal, but it would be persuasive in guiding your health professionals in determining your treatment.

11. What is My Health Record?

My Health Record is a secure online summary of an individual’s health information and is available to all Australians. Healthcare providers authorised by their healthcare organisations can access My Health Record to view and add to their patients’ health information.

You can also use My Health Record to nominate a contact person, record your ‘values’ that may guide your health professionals in interpreting and implementing your AHD, record details of your guardian if you have made an EPG and for other purposes.

For further details see https://www.myhealthrecord.gov.au/for-healthcare-professionals/what-is-my-health-record

12. Can my AHD be registered My Health Record? Is it likely that a separate register will be created for AHDs?

At the moment you can – and should - register your AHD on My Health Record. In the future it may be possible to register your AHD in a separate electronic register designated specifically for this purpose although this aspiration may still be some time away from being realised.   

On My Health Record and any future register any new AHD that you register will automatically supersede the previous one. It is important that you keep your AHD up to date and registered so that your health professionals have access to your current treatment decisions.

13. Must my AHD be registered on My Health Record to be effective?

No, but it is sensible to register your AHD so that healthcare professionals will be aware of your treatment decisions irrespective of which medical facility you may find yourself in. You should also ensure that your own doctor and members of your family have a copy of your AHD. Any existing AHD should be updated from time to time to ensure that it clearly sets out your wishes. Copies of your AHD do not need to be certified as true copies although this does makes them look more official. (The authorised witness (see 5 above) is also authorised to certify a document as a true copy).

14. How else can I bring the existence of my AHD to the attention of health professionals, if (for instance) I am unconscious after an accident?

You may wish to carry an “alert card” in your wallet stating that you have made an AHD and/or organ donation request, but registration of these matters on My Health Record is much more effective in communicating this information to your health professionals and family members.

15. Can I include instructions about organ donation in my AHD?

Yes.

16. What is a “living will”? Is a living will as effective as an AHD?

This may just be a matter of terminology. Since it is not obligatory to use the “official” form of AHD found on the Department of Health’s website, you may have written your directives in a different format. If you satisfy the requirements – being an adult and having legal capacity, and the document has been witnessed appropriately - then a “living will” and an AHD are effectively the same thing. If the living will does not satisfy the legal requirements to give it statutory force, it will still be an important document to communicate your wishes to your health professionals and family members.

17. If I have made an AHD with full legal capacity but subsequently develop dementia or Alzheimer’s, will my AHD still be effective?

Yes. An AHD becomes effective when you are unable to communicate your treatment decisions for yourself.

18. May I include in my AHD a directive that I wish to access voluntary assisted dying if I satisfy all the criteria in the Voluntary Assisted Dying Act 2019?

You will never be able to satisfy those criteria because one of them is that you have decision-making capacity at every stage of the process, and your AHD will not come into effect until you lose that capacity. However, including this as a “value statement” will indicate to your medical professionals that this would have been your wish, which may help them decide that a lawful treatment option such as terminal palliative sedation may be appropriate in your case. Once the above Act is operative (from approximately July 2021), this may also help to establish the enduring nature of your wish.

19. I understand that the existing AHD form is being reviewed and that other changes may be made by the Department of Health about advance care planning and AHDs. Will my existing AHD still be valid under the new regime?

Yes, but it may be a good opportunity to revisit your existing AHD to see if it needs to be updated or clarified. (See also 7 above).

20. What if I have not specified the treatment decision I want in relation to my current medical condition?

In these circumstances it will be left to your health professionals to make the appropriate decision in discussion with your enduring guardian and your family and in accordance 21with any values your may have specified - see https://www.myvalues.org.au/

21. What sanctions apply if my health professionals do not follow the directives in my AHD?

It is professional malpractice not to follow the valid directives in your AHD but there are no specific sanctions or penalties imposed by the Guardianship and Administration Act.

22. Where can I get further information about advance care planning and AHDs?

The WA Cancer and Palliative Care Network: email [email protected] or telephone support – 9222 2300

Department of Health: https://ww2.health.wa.gov.au/~/media/Files/Corporate/general%20documents/Advance%20care%20planning/PDF/preparing_an_advance_health_directive.ashx

Contact Dying with Dignity WA at [email protected] or [email protected]