Advance health directive

As explained in bulletin No 1, an advance health directive is a document in which you prescribe (in the presence and with the guidance of a medical practitioner) in advance, the medical treatment that you would wish to have, should you not be able to make decisions or communicate them at that time.  We foreshadowed that we would consider the following issues.

Who is involved in bringing a valid advance health directive into existence and legal effect?

• the first person involved is the maker of the document;
• the second person is a medical practitioner; and
• the third person is an eligible witness.
• The order in which these participants “put pen to paper” is:
  • The maker and medical practitioner meet and go through the document and the medical practitioner signs and dates in section 5.  The maker does not sign at this stage;
  • The maker then takes the document to the eligible witness, and they both sign in section 7.  The witness alone then completes the witness certificate, part of which is a confirmation that section 5 has already been signed by a medical practitioner.

What does an advance health directive actually say?

The contents of the document include among other things, medical options.  Examples are (this list is not exhaustive):

• cardiopulmonary resuscitation;
• assisted ventilation;
• artificial nutrition;
• artificial hydration;
• antibiotics;
• other life sustaining treatment.

The document only operates while the maker lacks capacity for the medical matter.  If the maker still retains that capacity, the document does not need to be relied upon – the maker can give normal directions as to treatment to be accepted or rejected.

Why do you have to be careful filling out part of an advance health directive?

The statutory form for an advance health directive contains an optional enduring power of attorney for health matters within its pages as section 6.  If you have previously and separately made an enduring power, and have forgotten about it, you may be tempted to fill out the optional enduring power of attorney within section 6 in a manner that is different from your existing enduring power.  This can result in you having 2 contradictory enduring powers of attorney.

What is the nature of the “legal force” of the directives that you set forth in the document?

A direction within an advance health directive is as effective as if the maker were “restored to full capacity” and gave the direction in question.

However, there is a difference in the case of a direction which is within the document, and which deals with withholding or withdrawing a life sustaining measure.  Such a direction in the document does not operate unless:

• The maker:
  • has a terminal illness or a condition that is incurable or irreversible, from which in medical opinion, the maker would reasonably be expected to die within 1 year; or
  • is in a persistent vegetative condition (severe and irreversible brain damage even though some vital bodily functions such as heartbeat and breathing are continuing – this condition is called a coma); or
  • is permanently unconscious; or
  • has an illness or injury of such severity that there is no reasonable prospect of life continuing without life sustaining measures; and
• commencement or continuation of the life sustaining measure is judged to be inconsistent with good medical practice; and
• the maker has no reasonable prospect of regaining capacity for health matters.

Can you change your advance health directive?

There is no equivalent to a codicil to an advance health directive.  In other words, you cannot add to it.  The only way to effectively change it is to make a new one.

Given that both an enduring power of attorney and an advance health directive can deal with health matters, which is the “stronger”?

The advance health directive has priority (Guardianship and Administration Act 2000 section 66).

Article by:

Gary Lanham
Special Counsel
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