If it is established that the Advance Health Directive is valid, the directions must be followed
43
. It is a legally
binding document.
The treating medical team must always start from the assumption that the person had the capacity to make the
advance decision, but even in emergency situations, as far as practicably possible, medical staff must ensure
that the Advance Health Directive is a valid document.
To be applicable, directions in an Advance Health Directive must apply to the situation in question and in the
current circumstances. However it should be noted that objections to certain forms of treatment, if made by the
principal after the date of the Advance Health Directive, must also be taken into consideration in the decision-
making process. Health care professionals must first determine if the person still has capacity to accept or
refuse treatment at the relevant time. If they have capacity, they can refuse treatment at this point, or they can
change their decision and accept treatment. In deciding whether an advance decision applies to the proposed
treatment, the health practitioner responsible for the patient’s care must consider:
• the date of the Advance Health Directive, the patient’s clinical circumstances and whether the advance
decisions relate to those circumstances, and
• whether there have been any changes in the patient’s personal life (for example, the person is pregnant
and this was not anticipated at the time of the advance decision) that might affect the validity of the
advance decision, and
• whether there have been any developments in medical treatment that the person did not foresee (for
example, new medications, treatment or therapies), and
• if any prior objections to health treatment have been made in any capacity these objections must be
taken into consideration in all decision-making about providing or not providing medical treatment, and
• whether a patient may have included in their Advance Health Directive that they consent to withholding
or withdrawal of life-sustaining measures despite the objection at the time this is occurring. This must
be respected.
To keep a record of the version of the Advance Health Directive as evidence that the document was sighted
and relied upon in a particular situation, clinical and administrative personnel may certify a photocopy or
facsimile of an original Advance Health Directive to keep on the patient’s records. This may also be useful
when transferring patients between facilities. However it should be recognised that this does carry an element
of risk. For example, the patient may revoke the copied Advance Health Directive and make a new one some
months later and neglect to inform the hospital when they are admitted. Despite this, it is acknowledged that
in many circumstances when immediate decisions are required, file copies of Advance Health Directives may
be the best indication of a patient’s wishes. Even if the Advance Health Directive later proves to be invalid, it
would still comply with common law evidentiary provisions.
2.2.3 Deciding not to follow an Advance Health Directive
If, after careful consideration, a medical officer chooses not to follow a patient’s Advance Health Directive
44
, a
second opinion must be sought from another senior medical officer or consultant. Meticulous and thorough
record-keeping will be required in these circumstances. Utmost care should be taken in this area because,
while the law does offer some protections for not following the directions in a valid Advance Health Directive
45
,
there are risks if medical officers choose not to do so.
Generally, medical officers are protected in circumstances where:
• they act in reliance on an Advance Health Directive without knowledge of its invalidity, or
• they act without knowledge of the existence of an Advance Health Directive, or
• a health provider has reasonable grounds to believe that a direction in an Advance Health Directive is
uncertain or inconsistent with good medical practice or that circumstances, including advances in
medical science, have changed to the extent that the terms of the direction are inappropriate.
43
Note that there are some exceptional situations where medical officers can choose not to follow the directions in an Advance Health Directive. Refer
to the Section 2.2.3 ‘Deciding not to follow an Advance Health Directive’ of the quoted text for more detail
44
This would include where the document is an original document, a photocopy or facsimile copy.
45
The Powers of Attorney Act 1998, at s103 offers statutory protection to health providers where they have not acted in accordance with an Advance
Health Directive in certain circumstances.