All about Advance Health Directives

What is an Advance Health Directive?

An Advance Health Directive (AHD) is a document that contains a consumer’s decisions about their future health care treatment.

Treatment includes:

  • medical
  • surgical
  • dental
  • other health care.

Patients can make an AHD in which they provide consent, or refuse consent, to future treatment.

What if the patient has not made an Advance Health Directive?

If a patient has chosen not to make an AHD, a treatment decision will be made on their behalf if they are unable to make the treatment decision for themself.

The treatment decision will be made by (in the following order of priority):

  1. Enduring Guardian (if appointed)
  2. Guardian (if appointed)
  3. by the hierarchy of decision makers (such as spouse, parent, child, sibling or unpaid carer).

When does an Advance Health Directive come into effect?

An AHD comes into effect only if the patient has lost capacity. This includes if they are unable to make or communicate a treatment decision at the time that the treatment is required when they have lost full legal capacity.

In these circumstances, the AHD acts as their voice.

Can an Advance Health Directive include permission regarding organ donation?

An AHD is ineffective after death. It is not an appropriate document to record wishes about donating organs.

People, who wish to donate their organs and tissues, can register on the Australian Organ Donor Register (external site).

Does an Advance Health Directive permit euthanasia?

No, an AHD cannot require or authorise a doctor or other health professional to take active steps to unnaturally end life.

What is the validity of an Advance Health Directive?

There is no set time period after which an AHD will become elapse or expire.

Although, given that people can change their mind, if a long period of time has elapsed between the time people make an AHD and the time that the treatment decision is required, it may create some uncertainty.

Therefore it is recommended that consumers regularly review their AHD to ensure that it reflects current wishes.

Is it a legislative requirement that an Advance Health Directive form be used if the person already has a living will?

No, despite the introduction of the legislation, it is still possible for people to make a living will and for this is valid under the common law.

What is the difference between an Enduring Power of Guardianship and an Advance Health Directive?

An Enduring Power of Guardianship (EPG) is a legal document that people use to appoint 1 or more persons as Enduring Guardian(s) (EG) to make:

  • personal
  • lifestyle
  • health care treatment decisions on their behalf.

An AHD is a document that contains decisions about future treatment.

Future treatment includes:

  • medical
  •  surgical
  • dental treatment
  • other health care.

An AHD can include consent or refusal of consent, of future treatment.

If people are unable to make a treatment decisions for themselves, instructions included in their AHD must be followed by health professionals instead of the appointed EG.

What is capacity?

Capacity is the cognitive ability to understand and appreciate the context, choices and consequences of our decisions. It is also a person’s performance on measures of decision making ability.

Competency differs as it is determined by courts and tribunals and is the legal judgement that a person’s capacity is adequate to make the decision in question.

Competency is a legal construct and capacity is a clinical one.

A person is said to have capacity if they are at least 18 with the ability to acquire, assimilate and interpret information and then to make a (reasonable) decision.

A person may lack capacity if their decision-making is impaired, for example, because of:

  • illness
  • disease
  • injury,
  • the effects of medication, drugs or alcohol.

My patient, within the hospital I work, has given me their AHD – What should I do?

Ensure that your patient retains their original AHD and they are giving you a copy (preferably a certified copy).

If they have given you their original AHD, then make a copy and return the original AHD back to them.

It is important that you follow your organisation’s policy in relation to managing this document.

If you are not part of the patient’s usual medical team, advise the patient to discuss their AHD with their usual doctor.

My patient’s Advance Health Directive does not cover their current situation – What should I do?

If your patient has capacity then you should obtain consent from them prior to initiating any treatment.

If the patient’s current situation is likely to recur and the treatment in their current AHD will have a significant impact, then providing the patient has clear intent, they may consider making a new AHD and revoking the previous one.

If your patient has lost capacity

If the treatment decisions contained in their AHD do not meet their current medical requirements, you must contact the hierarchy of decision makers (if it is a non-urgent condition) and ask the correct person for consent.

If an urgent decision is required, your treatment decisions must be based on the patient’s best interests.

My patient’s AHD consents to treatment I do not consider to be appropriate – what should I do?

Patients can sometimes write down treatment decisions which health professionals may disagree with, but these decisions may still be valid.

The AHD may not be used to demand treatment which is not clinically required.

The first step is to discuss with the patient (and where possible, their usual treatment team) to determine the best option for the patient.

If the patient lacks capacity, this discussion should be made with their EG or other substitute decision maker.

I have concerns regarding the circumstances in which an AHD was created – what should I do?

If you have concerns, firstly you could discuss these with the patient if possible.

You may also wish to check if the patient has listed the details of person(s) they have contacted for medical or legal advice and discuss your concerns with them.

If the patient lacks capacity, then it is important to discuss your concerns with the patient’s usual medical team or identified decision maker as per the hierarchy of decision makers.

If your concerns remain, then you should make an application to the State Administrative Tribunal (SAT) to determine the document’s validity.

I have concerns regarding the patient’s (Enduring) Guardian – what should I do?

A patient’s EG must act in the best interest of the patient.

If you have concerns about an EG, it is important to talk to others involved in the patient’s care.

It could be helpful to arrange a meeting with the patient’s EG and the treating medical team, to try and resolve it. If apprehensions remain, then you should make an application to SAT detailing your concerns.

My patient’s AHD and living will are inconsistent – what should I do?

A patient’s AHD and living will must be consistent.

If the patient has capacity, then you can recommend they make a new AHD or living will ensuring that both documents are consistent with each other.

You could also recommend that rather than having both a living will and an AHD, they consider having just the 1 document to minimise any future confusion and that they must revoke any previous documents.

If your patient no longer has capacity, then an application should be made to SAT to determine the validity of their AHD and living will. 

My Patient’s AHD and their Enduring Guardian/family are seeking different treatments – what should I do?

Once a person has lost capacity, the Hierarchy of decision makers (non-urgent) must be consulted to clarify who we approach for consent.

The top of the hierarchy is the AHD.

If the patient’s AHD is valid, then it overrules the patient’s EG or family. If the family remain concerned, they should be advised that they can apply to SAT to determine the validity of the AHD.

More information

Advance Health Directive

Office of the Chief Medical Officer

  • Phone: 9222 2300
  • Email: ACP@health.wa.gov.au
  • Mail: PO Box 8172, Perth Business Centre, Perth WA 6849

Enduring Powers of Guardianship

Office of the Public Advocate

Produced by

WA Cancer and Palliative Care Network