JH - [2022] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JH [2022] WASAT 108
MEMBER:   PRESIDENT PRITCHARD
DR E MARILLIER, SENIOR MEMBER
MS F CHILD, MEMBER

HEARD:   29 NOVEMBER 2022
ORDER MADE       :   29 NOVEMBER 2022
REASONS
PUBLISHED           :   8 DECEMBER 2022
FILE NO/S:   GAA 4328 of 2022

JH

Catchwords:

Advance health directive - Whether advance health directive valid under s 110W of Guardianship and Administration Act 1990 (WA) - Jurisdiction of Tribunal under s 110W of Guardianship and Administration Act 1990 (WA) - Requirements of Guardianship and Administration Act 1990 (WA) in relation to validity of advance health directives - Whether advance health directive is in or substantially in form prescribed by regulations - Essential features of advance health directive form prescribed by regulations - Whether advance health directive invalid if form fails to comply with requirement that maker be encouraged to seek legal or medical advice - Declaration that advance health directive is valid

Legislation:

Acts Amendment (Consent to Medical Treatment) Bill 2006 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(7), s 110P, s110Q, s110Q(1)(a), s110Q(1)(b), s 110Q(1)(c), s 110Q(1)(d), s 110Q(1)(d)(ii), s110Q(1)(e), s 110Q(2), s 110Q(3), s 110R, s 110S, s110S(1)(a), s110S(2), s110S(3), s 110V, s 110W, s 110X, Pt 9B, Pt 9E
Guardianship and Administration Regulations 2005 (WA)
Health Practitioner Regulation National Law (WA) Act 2010, s 113
Oaths, Affidavits and Statutory Declarations Act 2005 (WA), s 12(6)(a), Sch 2

Result:

Declaration that advance health directive is valid

Category: B

Representation:

Counsel:

Subject

N/A

Solicitors:

Subject

N/A

Case(s) referred to in decision:

AL [2017] WASAT 91

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

MCC, a service provider under the National Disability Insurance Scheme, through one of its employees, Ms MR, has applied pursuant to s 110W of the Guardianship and Administration Act 1990 (WA) (Act) for a declaration that an advance health directive (AHD) made by Ms JH on 26 April 2016 (JH AHD) is valid (Application).[1]
[1] Ms MR was substituted as the applicant in place of Ms KR, who originally lodged the application.
Ms JH currently lives in residential accommodation operated by MCC (Accommodation). Ms JH has lived in the Accommodation since 2019. Since then, Ms JH's physical health has deteriorated significantly. In addition, Ms JH's cognitive capacity has deteriorated to the point that there is evidence that she no longer has the capacity to make decisions in relation to personal matters.
MCC wishes to respect Ms JH's expression of her wishes in the JH AHD if it is valid. However, MCC has received some advice which questioned the validity of the JH AHD. MCC brought the Application, seeking a declaration from the Tribunal, in order to resolve that question.
At the conclusion of the hearing, we made an order that the JH AHD is valid. We indicated that we would provide our reasons for that decision in due course. These are our reasons for concluding that the JH AHD is valid.
For the reasons set out below, having regard to the formal requirements for validity in s 110Q of the Act, we are satisfied that the JH AHD is valid. Furthermore, we are satisfied that none of the circumstances which, according to s 110R of the Act, render an AHD invalid, existed at the time the JH AHD was made.

In these reasons for decision, we deal with the following matters:
(a)the Tribunal's jurisdiction under s 110W;
(b)whether MCC is entitled to bring the Application;
(c)the hearing and the evidence received by the Tribunal;
(d)Ms JH's present state of health;
(e)The terms of the JH AHD;
(f)MCC's concerns in relation to the validity of the JH AHD;
(g)whether the Act's requirements for a valid AHD were met;
(h)whether the circumstances which render an AHD invalid existed at the time the JH AHD was made; and
(i)other issues raised in the proceeding which the Tribunal presently has no jurisdiction to determine.

(a) The Tribunal's jurisdiction under s 110W

Under s 110W of the Act, the Tribunal has jurisdiction to make a declaration that an AHD, or a treatment decision[2] in an AHD, is valid or invalid.
[2] Defined in s 3 of the Act.
The term 'advance health directive' is defined in the Act solely by reference to an AHD made under Pt 9B of the Act or an instrument made in another jurisdiction but which is recognised as an advance health directive in this State.[3]
[3] Section 3 of the Act.
However, in practical terms, an advance health directive, of the kind which is able to be made under Part 9B of the Act, is a document:
•by which the maker of the AHD;
•sets out, in writing, and in the presence of witnesses;
•for the purpose of informing interested persons, particularly any health professional who may be required, at any stage in the future, to consider whether to commence or continue medical treatment in relation to the maker of the AHD, and who becomes aware of the existence and terms of the AHD;
•the treatment decisions - which include[4] decisions to commence or continue 'treatment' as defined in the Act, and which includes medical or surgical treatment, including a life sustaining measure or palliative care, dental care, and other health care;[5]
•to which the maker of the AHD wishes to be taken, by the operation of the Act, to have given or refused consent, in circumstances where the need for consent to that treatment arises; and
•which will operate, in accordance with the Act,[6] when the maker of the AHD is unable to make reasonable judgments in respect of that treatment.
[4] A treatment decision also includes to consent or refuse to consent to the commencement or continuation of the person's participation in medical research.
[5] See the definition of 'treatment' in s 3 of the Act. 'Treatment' also includes medical research which is the subject of Pt 9B and Pt 9E of the Act, but not otherwise.
[6] For example, an AHD will not operate in the circumstances described in s 110S(3) of the Act.
Only a person who has reached 18 years of age and who has full legal capacity may make an AHD containing treatment decisions in respect of his or her future treatment.[7]
[7] Section 110P of the Act.
In order to determine whether to make a declaration as to whether an AHD is valid or invalid, the Tribunal must necessarily determine whether the requirements under the Act for a valid AHD have been met. It must also consider whether the circumstances which, under the Act, render an AHD invalid, existed in relation to the AHD in question.
The requirements for a valid AHD are set out in s 110Q of the Act. Other than in a case where the maker of the AHD is unable to sign it,[8] the requirements for a valid AHD, in summary, are:
•the AHD must be in the form, or substantially in the form, prescribed by the Guardianship and Administration Regulations 2005 (WA) (Regulations);[9]
•the AHD must be signed by its maker;[10]
•the signature of the person who signs the AHD must be witnessed by two persons. Each of them must be a person authorised to take declarations. Alternatively, one of them must be authorised by law to take declarations, and the other must be 18 years of age, and not the maker of the AHD;[11] and
•the witnesses must sign the AHD in the presence of its maker and in the presence of each other.[12]
[8] If the maker of the AHD is unable to sign it another person may, at the direction of the maker of the AHD, sign the AHD: see s 110Q(1)(c) of the Act.
[9] Section 110Q(1)(a) of the Act.
[10] As previously noted, if the maker of the AHD is unable to sign it, it may be signed by another person at the direction of the maker of the AHD. In that event, the maker of the AHD must be present when the person signs the AHD at their direction: see s 110Q(1)(c) of the Act.
[11] If a person signed the AHD at the direction of the maker of the AHD, that person is also precluded from being a witness to the signature: s 110Q(1)(d) and s 110Q(3) of the Act.
[12] If a person signed the AHD at the direction of the maker of the AHD, that person must also be present when the witnesses sign the AHD: s 110Q(1)(e).
In addition, s 110Q includes, as one of the formal requirements for validity, that 'the maker [of the AHD] is encouraged to seek legal or medical advice'.[13] However, failure to comply with that requirement does not affect the validity of an AHD.[14]
[13] Section 110Q(1)(b) of the Act.
[14] Section 110Q(2) of the Act.
The Act also sets out a number of circumstances which, if applicable, will render an AHD, or a treatment decision in an AHD, invalid.[15] In summary they are:
•the AHD was not made voluntarily;
•the AHD was made as a result of inducement or coercion; and
•at the time the AHD was made, the maker of the AHD did not understand the nature of the treatment decision or the consequences of making that treatment decision.
[15] Section 110R of the Act.
In dealing with the Application, we are cognisant that our primary concern must be the best interests of Ms JH, in respect of whom the Application has been made.[16] In determining the Application, we sought to ascertain Ms JH's wishes as to whether there should be compliance with the JH AHD.[17]

(b) Whether MCC is entitled to bring the Application

[16] Section 4(2) of the Act.

[17] Section 4(7) of the Act.

A person with a proper interest in the matter may apply to the Tribunal for a declaration as to the validity of an AHD or treatment decision in an AHD.[18]
[18] Section 110V of the Act.
MCC, through its employee Ms MR, made the application under s 110W. We are satisfied that MCC has a proper interest in the validity of the JH AHD. MCC operates the Accommodation. Its staff will no doubt be the first to respond in the event that JH experiences a medical event that requires treatment, and they will be the first to deal with any doctors, paramedics or other health professionals who may be called upon to treat Ms JH in that event. As we explain below, we do not consider that the Tribunal presently has jurisdiction to determine some of the questions raised by the Application. Nevertheless, it is in the best interests of Ms JH that MCC's staff have clarity about the validity of the JH AHD so that, if it is valid, they will be in a position to make a decision as to what action they should take, in the event that circumstances arise in which they would ordinarily be expected to give medical treatment of the kind the subject of one of the treatment decisions referred to in the JH AHD.

(c) The hearing and the evidence received by the Tribunal

In advance of the hearing, MCC filed documents which provided the Tribunal with some evidence in relation to Ms JH's present state of health, and which identified the concerns it had in relation to the validity of the JH AHD.
Given the nature of the Application and the issues it raised, the Tribunal invited the Attorney General of Western Australia to participate in these proceedings as an amicus curiae. In the end, the Attorney General did not appear. Rather, the Office of the Public Advocate, represented by counsel from the State Solicitor's Office, appeared, in order to make submissions in relation to the operation of the relevant legislative provisions. The Tribunal was greatly assisted by the submissions prepared by Mr Berson of the State Solicitor's Office.
In the course of the hearing, we heard evidence from Ms SH, Ms JH's daughter, in relation to her mother's state of health. Ms SH was also able to give evidence as to her knowledge of her mother's decision to make the JH AHD, the circumstances in which that was done, and her mother's wishes in relation to whether effect should be given to the JH AHD. We accept Ms SH's evidence.
Ms MR also gave some evidence in relation to Ms JH's health, and to her knowledge as to how MCC staff came to be aware of the JH AHD. We accept the evidence of Ms MR.
Ms JH's husband, Mr DH, suffers from dementia, and lives in aged care accommodation.[19] He was not able to participate in the hearing. Ms JH's son, Mr JH, was unable to attend the hearing. Ms SH informed us that her brother supports MCC's application in order to obtain clarity in relation to the validity of the JH AHD so that Ms JH's wishes in relation to any future medical treatment she may require may be respected.
[19] ts 10, 29 November 2022.
Ms JH attended the hearing by telephone, accompanied by her carer, Ms K. We sought to ascertain the wishes of Ms JH directly, but she had some difficulty in expressing her views to us. Ms K was able to relay Ms JH's views to us. We also ascertained Ms JH's wishes through the evidence of Ms SH. We took Ms JH's wishes into account.

(d) Ms JH's present state of health

Having regard to the documentary evidence provided by MCC, and to the evidence of Ms SH and Ms MR, we make the following factual findings.
Ms JH is 63 years of age. Ms JH has lived in the Accommodation since 6 May 2019. Ms JH has a high level of need for physical support in her day-to-day living. She is assisted by two support workers, and requires one staff member to be present with her at all times.
Ms JH has experienced poor health for much of her life. Dr MM, a general practitioner, provided the Tribunal with a report dated 28 October 2022. In that report he noted Ms JH's medical history. Having regard to that evidence, and to the evidence of Ms SH, we find that Ms JH suffered a stroke when she was a teenager, and suffered paralysis or weakness on her right hand side as a result, and that she also suffers from epilepsy and experiences seizures.[20]
[20] ts 13, 29 November 2022.
The Application notes that 'over the last year [Ms JH's] seizure activity has increased significantly, resulting in numerous hospital stays resulting in a decline in all communications ability, thought processing and requiring an increase in need of allied health involvement on a daily basis'. Ms MR confirmed that to be the case in her evidence.
Ms MR informed us that she was working at the Accommodation when Ms JH commenced living there in May 2019. Having regard to Ms MR's evidence, we find that Ms JH's health has greatly declined in the course of the three years since May 2019. When she first moved into the Accommodation, Ms JH was ambulatory. She now requires a wheelchair to move around, and physical assistance in getting in and out of bed. We find that as a result of her epilepsy, Ms JH now suffers quite severe and prolonged seizures, with some frequency. She also experiences frequent urinary tract infections. Consequently, in recent times, Ms JH has required a number of hospital admissions.[21]
[21] ts 7, 29 November 2022.
Ms MR also explained that she had observed a 'massive decline' in Ms JH's cognition since 2019.[22] In 2019, Ms JH could hold a conversation and could make some decisions, such as in relation to her personal care, although her ability to make financial decisions appeared more limited even at that time.[23] Ms MR informed us that while Ms JH now still has periods of lucidity (and noted that Ms JH had been quite lucid during the past couple of weeks), she can often become confused.[24] Ms JH often has difficulty with speech, which makes communication more difficult.
[22] ts 7, 29 November 2022.
[23] ts 7-8, 29 November 2022.
[24] ts 7 and 9, 29 November 2022.
Ms SH's evidence as to Ms JH's health was consistent with the evidence given by Ms MR. Ms SH recalled that while her mother had experienced paralysis as a result of the stroke she suffered in her youth, that did not appear to have had any immediate effect on her cognition.[25] Ms SH noticed a change in her mother's thought processes about 10 years ago, when occasionally her mother would become confused, including after she experienced a seizure. However, Ms SH explained that that confusion would quickly resolve.[26] Ms SH confirmed that while Ms JH's cognition has significantly deteriorated in the last few years, she still has periods of lucidity.[27]
[25] ts 13-14, 29 November 2022.
[26] ts 14, 29 November 2022.
[27] ts 15, 29 November 2022.
It appears from Dr MM's report that Ms JH has also been recently assessed by a neurologist. Dr MM noted that a report of that assessment detailed the deterioration in Ms JH's cognitive function, but we did not have any evidence in relation to that assessment or its outcome.
Dr MM, in his report, expressed the opinion that Ms JH is 'unable to make her own decisions with regards to her care'. On the other hand, the documentary evidence provided by MCC included a copy of Ms JH's NDIS plan, some of the information in which appears to suggest that, at least as at July 2022, Ms JH retained some decision-making ability. As we have noted, both Ms SH and Ms MR told us that Ms JH still has periods of lucid thinking but is also prone to confusion. For the purpose of resolving the Application, it is not necessary for us to make any finding in relation to Ms JH's present capacity to make decisions in relation to personal matters. (The Application did not comprise an application for a declaration as to the incapacity of Ms JH under s 110X of the Act.) We simply note that if, and to the extent, that Ms JH has lost the capacity to make decisions in relation to personal matters, then she may not be in a position, in the future, to give or refuse her consent to medical treatment, and at that point, the JH AHD may become operative. That merely serves to highlight the importance of determining the Application, so that those who might be asked to consider the effect of the JH AHD will be in no doubt as to its validity.

(e) The terms of the JH AHD

At the outset, it is important to note that earlier this year, the form for an AHD which was prescribed under the Regulations was significantly amended. The form presently prescribed is set out in Attachment 1 to these reasons.
A copy of the form which the Regulations prescribed, as at 26 April 2016, when the JH AHD was made by Ms JH, is set out in Attachment 2 to these reasons.
A copy of the JH AHD was in evidence. It was three pages in length. The AHD form completed by Ms JH appears to have been a copy of a printed form. However, we note that the content of the three pages of the JH AHD, in the electronic (scanned) form in which it was provided to the Tribunal, appeared in an order different from the order of the pages in the form prescribed by the Regulations as at 26 April 2016. Furthermore, the balance of the prescribed AHD form (under the heading 'Optional statement about legal or medical advice', and including the section headed 'Optional statement about enduring power of guardianship') did not form part of the JH AHD provided to the Tribunal. We have proceeded on the basis that the Tribunal has been provided with a complete copy of the AHD which was made by Ms JH , and we so find.
The first page of the JH AHD is in the same terms as the AHD form prescribed in 2016, up to and including all of the 'notes about treatment decisions'.
The only part of page 1 of the form which required the insertion of information concerned Ms JH's personal details. The first page of the JH AHD sets out, in handwriting, the date on which the JH AHD was made (26 April 2016), Ms JH's name, her address and her date of birth. Ms SH told us that she recognised the handwriting as her mother's.
Page 2 of the JH AHD contains a number of sections pertaining to 'Treatment decision'. These (which was the third page of the scanned copy received by the Tribunal) appear on the prescribed form, and may be completed in order to set out the maker's wishes in relation to different kinds of treatment decisions. Only one section has been completed in the JH AHD, as follows (the italicised text appears in handwriting in the JH AHD):
In the following circumstances:
When I become incapacitated for whatever reason,
I ~~consent~~ / refuse consent (cross out and initial one of these)
To the following treatment:
1.To be resuscitated
2.To be put on life support.
(The deletion of the word 'consent' has been initialled.)

Ms SH informed us that she did not recognise the handwriting on page 2 of the JH AHD under the heading 'Treatment Decision'.[28] That handwriting appears to be different from Ms JH's handwriting. The handwriting appears, at first blush, to be similar to the handwriting of one of the witnesses, Dr AL. The most likely, and only reasonable inference, in the circumstances, is that Dr AL completed this part of the JH AHD. That is not entirely surprising given Ms JH was a person who had suffered some paralysis from a stroke years before, and whose handwriting (on page 1 of the JH AHD) appears to have been somewhat shaky.
[28] ts 12, 29 November 2022.
Page 3 of the JH AHD (which was the second page of the scanned copy received by the Tribunal) commences with 'Notes for maker about signing and witnessing' and otherwise contains the signatures of the maker of the JH AHD and witnesses and the dates on which they witnessed the document. The entry for the maker's signature is signed in handwriting which Ms SH confirmed was Ms JH's handwriting.
The section for witnesses bears the signatures of two witnesses, each dated 26 April 2016. The first witness was Dr AL, whose occupation was stated to be 'Patient's GP', and whose given address was a medical centre. The other witness was Ms GJS whose address was the same medical centre as that for Dr AL.

(f) MCC's concerns in relation to the validity of the AHD

MCC's concerns in relation to the validity of the JH AHD were set out in an email sent by Ms MR to the Tribunal dated 1 November 2022. Those concerns were, in summary, as follows:
•the JH AHD was not in the prescribed form, or even substantially in the prescribed form;
•Ms JH's signature was not witnessed by qualified witnesses. While one was a doctor, it was unclear whether the other witness was authorised to take declarations or had the requisite qualifications; and
•the JH AHD did not include provision for Ms JH to indicate whether she had obtained advice.
Ms MR confirmed that those were MCC's only concerns in relation to validity.
For completeness, we note that no part of MCC's application sought any direction by the Tribunal as to the construction of the terms of the JH AHD. However, in compliance with an order of the Tribunal, MCC filed a statement of issues, facts and contentions. It described the issue for resolution by the Tribunal as 'whether the [JH AHD] is valid and binding', and sought an order to the effect that the JH AHD was 'valid and binding'. Further, MCC raised as a 'contention' 'whether [MCC] must act in accordance with the [JH AHD]'. We return to the issues of whether the JH AHD is binding, or binding on MCC, later in these reasons.

(g) Whether the Act's requirements for a valid AHD have been met

We will deal separately with each of the requirements for validity.
•the AHD must be in the form, or substantially in the form, prescribed by the Regulations made under the Act[29]
[29] Section 110Q(1)(a) of the Act.
MCC's concerns in relation to this aspect of the validity of the JH AHD appear to proceed from the fact that the JH AHD is not in the form of the AHD which is presently prescribed under the Regulations.
In our view, there can be no doubt that the requirements for the validity and invalidity of an AHD apply as at the date when the AHD is made. That much is implicit in the nature of those requirements, such as the requirement for the AHD to be signed in the presence of witnesses, and whether or not the AHD is made voluntarily, or as a result of inducement or coercion. Consequently, the requirement in s 110Q(1)(a) of the Act that an AHD be in the form or substantially in the form prescribed by the Regulations must be understood as referring to the form prescribed by the Regulations as at the date of the making of the AHD. In determining whether the JH AHD is valid, it will be necessary to consider, amongst other things, whether it is in the form or substantially in the form which was prescribed by the Regulations as at 26 April 2016, namely the form which is set out in Attachment 2 to these reasons.
When the JH AHD is compared with that form, it is in the same form as the form prescribed in 2016, other than in three respects. First, as we have already noted, the three pages of the JH AHD with which the Tribunal was provided are in a different order from the pages of the prescribed form. We do not consider that that affects the validity of the JH AHD. The order of the pages of the copy of the JH AHD provided to the Tribunal may well have resulted from an administrative slip. In any event, despite the different order of the pages, we consider that that part of the JH AHD remains substantially in the form prescribed by the Regulations.
The ordinary meanings of the adverb 'substantially' include 'in essence; essentially, intrinsically', 'to a great extent or degree; considerably, significantly, much' and 'in all essential character or features; in essentials, to all intents and purposes, in the main'.[30] The criterion that an AHD made by a person be in the form, or substantially in the form prescribed, requires that the AHD made by a person reflects to a great extent or degree the prescribed form, and does so in respect of all essential characters or features of the prescribed form. The essential characters or features of the prescribed form are those relevant to the other criteria in the Act which pertain to the validity of an AHD. The requirement that an AHD be substantially in the form prescribed reflects a legislative intention that the validity of an AHD should not be defeated by its failure to mirror the prescribed form in small, minor or inconsequential ways.
[30] Oxford English Dictionary Online.
In our view, the essential characters or features of the AHD form which was prescribed as at 26 April 2016 comprise: the sections of the prescribed form setting out the details of the maker of the AHD and the date when the AHD is made; the explanation of an AHD (that it contains treatment decisions in respect of the maker's future treatment, which will operate whenever the maker is unable to make reasonable judgments in respect of that treatment); the explanation about treatment decisions; the section in which the maker sets out the treatment decision or decisions to which they consent or refuse consent; the explanatory directions for the witnesses; and the signatures of the maker, both witnesses, and their identifying details. We consider the explanatory sections of the prescribed form which explain the nature of an AHD and of a treatment decision are part of the essential features of the prescribed form, because they contain information critical to ensuring that the maker of the AHD is informed about the nature and effect of the AHD and about the treatment decisions they will be setting out in that document. The explanatory direction for the witnesses is, in our view, an essential component of the form, because it not only provides essential information to the witnesses, but supports some confidence that the witnesses have signed the AHD in compliance with the requirements of the Act.
In our view, notwithstanding the fact that the pages of the JH AHD appear in an order different from the order in which they appear in the prescribed AHD, those three pages of the JH AHD are in substantially the form of the prescribed AHD form. Despite the different order of the pages, each section of the prescribed text and the handwritten insertions which pertain to that text, appear together. This is not a case in which the various parts of the JH AHD appear in such a jumbled fashion as to cast doubt on the meaning of what is said in the form, or on Ms JH's intentions, or on compliance with the other requirements for validity of an AHD.
Secondly, that section of the prescribed form which appears under the heading 'Optional statement about legal or medical advice' does not form part of the JH AHD. In other words, what is missing from the JH AHD is that part of the prescribed form which concerns whether, and if so, by whom, the maker of the AHD has been encouraged to obtain legal or medical advice about the AHD. For the reasons set out below (in relation to the requirement that 'the maker is encouraged to seek legal or medical advice') we are satisfied, and we find, that notwithstanding the absence of that part of the AHD, the JH AHD remains in substantially the same form as the prescribed AHD form. Further, and in any event, we find that the absence of that part of the prescribed form does not render the JH AHD invalid.
Thirdly, the JH AHD does not contain the final section of the prescribed AHD form which appears in Attachment 2 under the heading 'Optional statement about enduring power of guardianship'. As the prescribed form makes clear, completion of the statement in relation to whether the maker of the AHD has made an enduring power of guardianship is completely optional, and the maker is not required to say anything in the AHD about that issue. Furthermore, whether or not the maker has appointed an enduring guardian otherwise has no bearing on the validity of an AHD. That being the case, we do not consider this section of the prescribed form to contain essential features of the prescribed form, in the sense that those features are relevant to the other criteria pertaining to the validity of an AHD. Consequently, in our view, the absence of this section of the prescribed AHD form does not affect the validity of the JH AHD. We consider that even without that section the JH AHD is substantially in the form prescribed by the Regulations.
•the AHD must be signed by its maker (or by someone in the presence of, and directed by, the maker of the AHD, in those cases where the maker of the AHD is not able to sign the AHD themselves)[31]
[31] Section 110Q(1)(c) of the Act.
In her evidence, Ms SH recognised the signature of the maker of the JH AHD as that of Ms JH.[32] We accept that evidence and we find that the JH AHD was signed by Ms JH.
[32] ts 11, 29 November 2022.
For the sake of completeness, we note that while we have found that the handwriting on page 2 of the JH AHD, under the heading 'Treatment Decision' was not Ms JH's handwriting, the Act does not require that all sections of an AHD be completed by the maker of the AHD, but rather requires only that an AHD be signed by the maker of the AHD.
•the signature of the maker of the AHD must be witnessed by two persons. Either, both of them must be a person authorised to take declarations, or one of whom must be authorised by law to take declarations, and the other must be 18 years of age, and not the maker of the AHD or the person who signed the AHD at the direction of the maker.[33]
[33] Section 110Q(1)(d) and s 110Q(3) of the Act.
The first witness to the JH AHD was Dr AL. Ms SH gave evidence that Dr AL had been Ms JH's general practitioner for a long time.[34] In order to practise medicine in Western Australia in 2016, it was necessary for a medical practitioner to be registered under the Health Practitioner Regulation National Law (National Law).[35] We note that Dr AL included what appears to be his registration number under his address and adjacent to his signature on the JH AHD. Having regard to that evidence, we find that Dr AL was registered as a doctor under the National Law at the time that he signed the JH AHD.
[34] ts 11, 29 November 2022.
[35] Schedule to the Health Practitioner National Law (WA) Act 2010; s 113 of the National Law.
At the time that the JH AHD was made, s 12(6)(a) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (Oaths Act) provided that an authorised witness for a statutory declaration made in Western Australia included any person described in the second column of Sch 2 to that Act. A person registered under the National Law in the medical profession was such a person.[36] We therefore find that Dr AL was a person authorised by law to take declarations, and thus qualified to witness Ms JH's signature on the JH AHD.
[36] See item 15 of Sch 2 to the Oaths Act.
The other witness was Ms GJS, who gave her address as the same medical centre at which Dr AL worked. Ms SH gave evidence that she had made an enquiry at that medical centre, and had been told by the receptionist at the centre that Ms GJS was a 'registered nurse' who was working at the centre at the time the JH AHD was signed.[37] (While that evidence was clearly hearsay, we have no reason to doubt the reliability of that evidence, especially having regard to the other evidence which is consistent with Ms GJS having been employed at the centre, and we accept it.)
[37] ts 12, 29 November 2022.
We note that the evidence that Ms GJS was a registered nurse is capable of being understood in two ways. The first is that all nurses (whether Registered Nurses or Enrolled Nurses) must be 'registered' under the National Law in order to work in the nursing and midwifery professions.[38] In our view, the evidence of Ms SH permits the inference that as a nurse working at a medical centre, Ms GJS must have been 'registered' as a nurse under the National Law. On that basis, we find that Ms GJS was registered under the National Law in the nursing and midwifery profession. Under the Oaths Act as in force in 2016, a person registered under the National Law in the nursing and midwifery profession was authorised to witness a statutory declaration.[39] On that basis, we find that Ms GJS was authorised to witness Ms JH's signature on the JH AHD.
[38] Section 113 of the National Law.
[39] Oaths Act s 12(6)(a) and Schedule 2, item 27.
The second way in which the evidence that Ms GJS was a 'registered nurse' may be understood is that the term 'Registered Nurse' (as opposed to 'Enrolled Nurse') refers to a nurse who has obtained a qualification at the level of a bachelor's degree in nursing. Even if Ms GJS was not actually registered under the National Law in the nursing and midwifery profession as at 26 April 2016, if she was a Registered Nurse, she must necessarily have completed at least a bachelor's degree in nursing, which ordinarily would require at least three years of full time study. On that basis, we find that Ms GJS must have been at least 18 years of age when she signed the JH AHD. On that alternative basis, we are also satisfied that Ms GJS was a qualified person to witness Ms JH's signature on the JH AHD.[40]
•the witnesses must sign the AHD in the presence of its maker, in the presence of the person who signed it at the direction of the maker (if that occurred) and in the presence of each other[41]
[40] See s 110Q(1)(d)(ii)(II) and s 110Q(3) of the Act.
[41] Section 110Q(1)(e) of the Act.
Given that the date 26 April 2016 appears next to the signature of each of the witnesses, that Ms JH also noted the date of her making the JH AHD as 26 April 2016, and that the JH AHD form clearly stated that the witnesses must be present when each of them signed the form, and when the maker of the AHD signed the form, the only reasonable inference is that Dr AL and Ms GJS were present when Ms JH signed the JH AHD, and when each of them signed the JH AHD as witnesses, and we so find.
•the maker of the AHD is encouraged to seek legal or medical advice
The meaning of the words 'is encouraged to seek legal or medical advice' in s 110Q(1)(b) is not entirely clear. The word 'encourage' means 'to inspire with courage sufficient for any undertaking; to embolden, make confident'[42] and 'to stimulate by assistance, approval etc'.[43] Given that ordinary meaning, the requirement for 'encouragement' to seek legal or medical advice might be met by encouragement in a variety of ways - by words spoken by another person to the maker of the AHD, or in a written form made available to the maker of the AHD. Counsel for the Public Advocate drew our attention to extracts from the debate in the Legislative Council in relation to the Acts Amendment (Consent to Medical Treatment) Bill 2006 (WA) (Bill)[44] which inserted Pt 9B into the Act. However, those extracts were drawn from the committee stage in relation to the Bill, and are of limited assistance in discerning the legislative intention. The ordinary meaning of the words in s 110Q(1)(b), understood in their context, have proved a surer guide to the meaning of that provision.
[42] Oxford English Dictionary Online; see also Macquarie Dictionary Online.
[43] Macquarie Dictionary Online.
[44] Debates of the Parliament of Western Australia, Legislative Council, 15 November 2007 pages 7210 -7211; 8 May 2008, pages 2702 - 2706.
The simplest way in which 'encouragement' to obtain legal or medical advice might be given to every maker of an AHD would be by the provision of that encouragement in writing on the prescribed AHD form itself. It is therefore not surprising that the AHD form which was initially prescribed by the Regulations, and the AHD form which is presently prescribed, each contain a statement to the effect that the maker is encouraged to seek legal and/or medical advice.
As we have noted, the copy of the JH AHD with which the Tribunal was provided did not include a copy of the final section of the prescribed AHD form which, at the time, contained statements in relation to obtaining legal or medical advice, including the following (the full statements appear on the form at Attachment 2):
You are encouraged (but not required) to seek legal or medical advice before making this advance health directive.
…
If you do not wish to obtain legal or medical advice you may (but do not have to) cross out and initial the statement.
You do not have to say anything in this advance health directive about whether or not you have sought or obtained legal or medical advice. You can leave the statement blank and do not have to cross out or initial any part of it.
As explained, we have proceeded on the basis that the JH AHD did not contain that final section of the prescribed form bearing the statement of encouragement to obtain legal or medical advice. However, we are satisfied, and we find, that the absence of that part of the prescribed AHD form, and thus the absence of that form of encouragement to Ms JH to obtain legal or medical advice before making the JH AHD, does not render the JH AHD invalid.[45] As we have already noted, failure to comply with the requirement that the maker be encouraged to seek legal or medical advice does not affect the validity of an AHD.[46] In those circumstances, even though the entire section of the prescribed AHD form which concerned encouragement to obtain legal or medical advice, was not part of the JH AHD, the JH AHD could not, on that basis, be regarded as invalid on the basis that it was not substantially in the form prescribed.
[45] Section 110Q(2) of the Act.
[46] Section 110Q(2) of the Act.
We note that another means by which the maker of an AHD might be encouraged to seek legal or medical advice would be by verbal encouragement by another person. And as is reflected in the prescribed AHD form itself, the best evidence that the maker of an AHD had been encouraged to seek legal or medical advice would be evidence (whether noted on the AHD form or otherwise) that that advice had in fact been sought and obtained.
In the present case, Ms SH informed us that Dr AL had been Ms JH's general practitioner for many years and was 'very much across' Ms JH's medical history.[47] Ms SH told us that Ms JH felt very comfortable with Dr AL.[48] Given that history, and in circumstances where Dr AL witnessed Ms JH's signature on the AHD, we consider it to be inconceivable that Ms JH did not actually obtain medical advice from Dr AL about the effect of the AHD and the implications for her future medical treatment of any treatment decision specified in the JH AHD. That being so, we consider the only reasonable inference from the facts is that Ms JH in fact sought and obtained medical advice, from Dr AL, about entering into the AHD, and that she did so prior to making the JH AHD, and thus that she was, in fact, encouraged to seek medical advice, and we so find.
[47] ts 15, 29 November 2022.
[48] ts 15, 29 November 2022.

As all of the requirements for a valid AHD have been met in this case, we find that the JH AHD is valid.

(h) Whether any evidence establishes that the circumstances which render an AHD invalid in fact existed at the time the AHD was made

•whether the AHD was not made voluntarily or was made as a result of inducement or coercion

There was no evidence before us to give rise to any concern, much less to support any finding, that the JH AHD was not made voluntarily or that it was made as a result of inducement or coercion. The evidence left us in no doubt that Ms JH entered into the JH AHD entirely voluntarily and without any inducement or coercion. Ms SH's evidence, which we accept, was that prior to making the JH AHD, Ms JH had discussed doing so with her husband and children. Ms SH acknowledged that it was hard for her and her brother to have that conversation with their mother, but that they respected her wishes.[49]
[49] ts 12, 29 November 2022.
In addition, Ms SH told us that during a recent hospital admission, when Ms JH was lucid, her treating doctors asked her whether she wanted CPR (cardio-pulmonary resuscitation) and that Ms JH told them no.[50] Ms MR also informed us that she and the staff of MCC had spoken with Ms JH in relation to the AHD, in order to ascertain whether Ms JH still wished it to be followed. Ms MR's evidence was that Ms JH was still content with the terms of the AHD, and wants it to be adhered to.[51] At the conclusion of the hearing, Ms K also informed us that despite her difficulties in communicating, Ms JH had been 'saying to [her] that she doesn't want to be resuscitated'.
[50] ts 15, 29 November 2022.
[51] ts 26, 9 November 2022.
Those recent expressions of Ms JH's wishes are consistent with the treatment decisions set out in the JH AHD. That evidence also supports the conclusion that the treatment decisions set out in the JH AHD were made voluntarily by Ms JH, and that Ms JH continues to have the same wishes in relation to those treatment decisions as she set out in the JH AHD.
•whether the maker of the AHD did not understand the nature of the treatment decision or the consequences of making the treatment decision
While there is some evidence to suggest that Ms JH no longer has the capacity to make decisions in relation to personal matters, we do not, for the reasons already explained, need to make any finding about that issue.
Relevantly for present purposes, the evidence did not suggest, much less was it sufficient to support a finding, that Ms JH was not able to understand the nature of the treatment decisions to which she referred in the JH AHD or the consequences of making those decisions. We start by noting that the treatment decisions in the JH AHD - 'I refuse consent to the following treatment: to be resuscitated; to be put on life support' are simple in nature. The circumstances in which they will arise are self-evident - namely if Ms JH's heart stops beating, or she stops breathing, and thus requires resuscitation, or is unable to breathe without assistance. The consequences of refusing treatment of that kind, in those circumstances, are obvious.
Ms SH also told us that when Ms JH discussed making an AHD with her family, she told them that she did not wish to be resuscitated or put on life support, and that 'when her time comes, she wants to go'.[52] Ms SH was quite certain that Ms JH knew what she wanted, and that she was 'very clear'[53] in her wishes as to what she was asking for, in relation to medical treatment, in the JH AHD.[54]
[52] ts 12, 29 November 2022.
[53] ts 13, 29 November 2022.
[54] ts 13, 29 November 2022.
Ms SH also confirmed that when Ms JH made the JH AHD she was not suffering from any confusion, and was very clear and decisive, and Ms SH did not recollect anything that caused her to be concerned as to whether Ms JH understood the treatment decisions to which she was referring in the JH AHD, or what the effect of them would be.[55]
[55] ts14, 29 November 2022.
Furthermore, the fact that the JH AHD was witnessed by Ms JH's general practitioner, Dr AL, militates against the conclusion that Ms JH lacked capacity to understand the effect of the treatment decisions she set out in that document. One would expect a general practitioner to decline to witness an AHD, if they had any concern in relation to their patient's capacity to understand the nature of the treatment decision(s) set out in the AHD or the consequences of making the decision(s).
We find that the JH AHD is not invalid.

Other issues raised in the proceeding which the Tribunal has no jurisdiction to determine

For the sake of completeness, we note that MCC had identified the issue for determination by the Tribunal as whether the JH AHD is 'valid and binding'.[56] It also identified as a 'contention' the question 'whether [MCC] must act in accordance with the [AHD]'.[57]
[56] Statement of Issues, Facts and Contentions filed by MCC.
[57] Statement of Issues, Facts and Contentions filed by MCC.
We make no finding in relation to whether the AHD is 'binding'. The question for the Tribunal under s 110W is solely whether an AHD is valid or invalid. The question whether a legal instrument is 'binding' raises the question whether it places a person under an obligation or compulsion.[58] The answer to that question will, depend, amongst other things, on whether the instrument's terms are sufficiently clear in meaning to be given effect. We note that in AL [2017] WASAT 91 (AL), Member Leslie referred to the requirements which need to be satisfied for an AHD to be 'valid and binding'. Viewed in the context of the decision as a whole, Member Leslie appears to have used the term 'binding' to refer to whether the terms of the AHD in that case were expressed with sufficient certainty as to be capable of being understood and given effect to.[59] That is not an issue that the Tribunal needs to be determine in order to resolve the Application.
[58] Macquarie Dictionary Online.
[59] See, eg, AL at [35], [37].
Furthermore, the question of who is 'bound' - in the sense of being obliged to adhere to - an AHD will depend, amongst other things, on the operation of the provisions of the Act, including s 110S, s 110ZJ(2), s 110ZL. The answer to that question will also depend on all of the circumstances, which will include the factual position at a particular point in time, including, for example, whether the maker of the AHD is in fact unable to make a treatment decision,[60] whether the circumstances call for a treatment decision of the kind the subject of the AHD,[61] and whether persons involved in implementing such treatment decisions are aware of the AHD and its terms. Those questions do not arise for determination in resolving the present Application under 110W. No application has been made to the Tribunal under s 110ZN, for example, and the Tribunal has no jurisdiction to determine issues concerning such an application in the absence of an application of that kind actually being made.
[60] Section 110S(1)(a) of the Act.
[61] Section 110S(2) of the Act.
More specifically, as no circumstances are said to have arisen in which the JH AHD is said to apply to a treatment decision which is required to be made, it would be wholly inappropriate for the Tribunal to speculate about who might be required to give effect to the treatment decisions made by Ms JH in the JH AHD.

Orders

The order we made at the conclusion of the hearing on 29 November 2022 was:
1.Pursuant to s 110W(1) of the Guardianship and Administration Act 1990 (WA), the Tribunal declares that the advance health directive made by JH on 26 April 2016 is valid.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EN
Associate to the Honourable Justice Pritchard
8 DECEMBER 2022

Attachment 1: Prescribed form for an Advance Health Directive as presently in force (set out in Schedule 2 to the Regulations)

Schedule 2 — Advance health directive form

[r. 7]

[Heading inserted: SL 2022/102 r. 5.]

ADVANCE HEALTH DIRECTIVE FORM

This form is for people who want to make an Advance Health Directive in Western Australia.

To make an Advance Health Directive, you must be 18 years or older and have full legal capacity. Your Advance Health Directive is about your future treatment. It will only come into effect if you are unable to make reasonable judgments or decisions at a time when you require treatment.

Part 4, marked with this symbol, contains your treatment decisions. If you choose not to make any treatment decisions in Part 4, then the document is not considered a valid Advance Health Directive under the Guardianship and Administration Act 1990.

Please tick the box below to indicate that by making this Advance Health Directive you revoke all prior Advance Health Directives completed by you.

* In making this Advance Health Directive, I revoke all prior Advance Health Directives made by me.

This form includes instructions to help you complete your Advance Health Directive. For more information on how to complete the form and to see examples, please read A Guide to Making an Advance Health Directive in Western Australia.

Before you make your Advance Health Directive, you are encouraged to seek legal and/or medical advice, and to discuss your decisions with family and close friends. It is important that people close to you know that you have made an Advance Health Directive and where to find it. Once you complete your Advance Health Directive, it is recommended that you:

• store the original in a safe and accessible place and tell your close family and friends that you have made an Advance Health Directive and where to find it

• upload a copy of your Advance Health Directive to your My Health Record — this will ensure that your Advance Health Directive is available to your treating doctors if it is needed

• give a copy of your Advance Health Directive to health professionals regularly involved in your health care (for example, your General Practitioner (GP), a hospital you attend regularly, and/or other health professionals involved in your care).

This form must be completed in English. If English is not your first language, you may need help to understand and complete this form. Contact the National Accreditation Authority for Translators and Interpreters for help.

PART 1: MY PERSONAL DETAILS

You must complete this part

You must complete Part 1.

You must include the date, your full name, date of birth and address.

This Advance Health Directive is made under the Guardianship and Administration Act 1990 Part 9B on the ........... of ..................., ...........

(day) (month) (year)

by ......................................................................

(name)

Full name

Date of birth

Address

(suburb)

(postcode)

Phone number

PART 2: MY HEALTH

2.1 My major health conditions

Use Part 2.1 to list details about your major health conditions (physical and/or mental).

Cross out Part 2.1 if you do not want to complete it.

Please list any major health conditions below:

2.2 When talking with me about my health, these things are important to me

Use Part 2.2 to provide information about what is important to you when talking about your treatment.

This might include:

Ÿ How much you like to know about your health conditions

Ÿ What you need to help you make decisions about treatment

Ÿ Whether you like to have certain family members with you when receiving information from your health professionals

Cross out Part 2.2 if you do not want to complete it.

Please describe what is important to you when talking to health professionals about your treatment:

PART 3: MY VALUES AND PREFERENCES

This part encourages you to think about your values and preferences relating to your health and care now and into the future. This may help you to decide what treatment decisions you want to make in Part 4: My Advance Health Directive Treatment Decisions.

In this part, you are not making decisions about your future treatment. Use Part 4 to make decisions about your future treatment.

Cross out any parts that you do not want to complete.

3.1 These things are important to me

Use Part 3.1 to provide information about what “living well” means to you now and into the future.

This might include:

Ÿ What the most important things in your life are

Ÿ What “living well” means to you

Cross out Part 3.1 if you do not want to complete it.

Please describe what “living well” means to you now and into the future. Use the space below and/or tick which boxes are important for you.

Please describe:

* Spending time with family and friends

* Living independently

* Being able to visit my home town, country of origin, or spending time on country

* Being able to care for myself (e.g. showering, going to the toilet, feeding myself)

* Keeping active (e.g. playing sport, walking, swimming, gardening)

* Enjoying recreational activities, hobbies and interests (e.g. music, travel, volunteering)

* Practising religious, cultural, spiritual and/or community activities (e.g. prayer, attending religious services)

* Living according to my cultural and religious values (e.g. eating halal, kosher foods only)

* Working in a paid or unpaid job

3.2 These are things that worry me when I think about my future health

Use Part 3.2 to provide information about things that worry you about your future health.

This might include:

Ÿ Being in constant pain

Ÿ Not being able to make your own decisions

Ÿ Not being able to care for yourself

Cross out Part 3.2 if you do not want to complete it.

Please describe any worries you have about the outcomes of future illness or injury:

3.3 When I am nearing death, this is where I would like to be

Use Part 3.3 to indicate where you would like to be when you are nearing death.

When you are nearing death, do you have a preference of where you would like to spend your last days or weeks?

Cross out Part 3.3 if you do not want to complete it.

Please indicate where you would like to be when you are nearing death. Tick the option that applies to you. You can provide more detail about the option you choose in the space below.

* I want to be at home — where I am living at the time

* I do not want to be at home — provide more details below

* I do not have a preference — I would like to be wherever I can receive the best care for my needs at the time

* Other — please specify:

Please provide more detail about your choice:

3.4 When I am nearing death, these things are important to me

Use Part 3.4 to provide information about what is important to you when you are nearing death.

This might include:

Ÿ What would comfort you when you are dying

Ÿ Who you would like around you

Cross out Part 3.4 if you do not want to complete it.

Please describe what is important to you and what would comfort you when you are nearing death. Use the space below and/or tick which boxes are important for you.

Please describe:

* I do not want to be in pain, I want my symptoms managed, and I want to be as comfortable as possible
(Please provide details of what being comfortable means to you)

* I want to have my loved ones and/or pets around me
(Please provide details of who you would like with you)

* It is important to me that cultural or religious traditions are followed
(Please provide details of any specific traditions that are important for you)

* I want to have access to pastoral/spiritual care
(Please provide details of what is important for you)

* My surroundings are important to me (e.g. quiet, music, photographs)
(Please provide details of what is important for you)

PART 4: MY ADVANCE HEALTH DIRECTIVE

TREATMENT DECISIONS

This part of your Advance Health Directive contains treatment decisions in respect of your future treatment. A treatment is any medical or surgical treatment (including palliative care or life‑sustaining measures such as assisted ventilation and cardiopulmonary resuscitation), dental treatment, or other health care.

A treatment decision in an Advance Health Directive is a decision to consent or refuse consent to the commencement or continuation of any treatment and includes a decision to consent or refuse consent to the commencement or continuation of the person's participation in medical research. This decision applies at any time you are unable to make reasonable judgments in respect of that treatment.

Treatment you consent to in this Advance Health Directive can be provided to you. Treatment you refuse consent to in this Advance Health Directive cannot be provided to you. Your enduring guardian or guardian or another person cannot consent or refuse consent on your behalf to any treatment to which this Advance Health Directive applies.

It is recommended that you discuss your treatment decisions with your doctor before completing this part.

Cross out any parts that you do not want to complete.

You MUST make at least one treatment decision in Part 4 to make a valid Advance Health Directive.

4.1 Life‑sustaining treatment decisions

Use Part 4.1 to indicate your instructions for future life‑sustaining treatments.

You can give an overall instruction or list individual treatments that you consent or refuse consent to receiving in the future. You can also list circumstances in which you consent or refuse consent to a particular treatment.

Life‑sustaining treatments are treatments used to keep you alive or to delay your death.

Read all options before making a decision. The options are over two pages.

Cross out Part 4.1 if you do not want to complete it.

You MUST make at least one treatment decision in Part 4 to make a valid Advance Health Directive.

If I do not have the capacity to make or communicate treatment decisions about my health care in the future, I make the following decisions about life‑sustaining treatment:

(Tick only one of the following options. If you choose Option 4, complete the table overleaf).

Option 1

* I consent to all treatments aimed at sustaining or prolonging my life.

Option 2

* 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.

Option 3

* I refuse consent to all treatments aimed at sustaining or prolonging my life.

Option 4

* I make the following decisions about specific life‑sustaining treatments as listed in the table below.
(Tick a box in each row of the table)

Option 5

* I cannot decide at this time

Please complete this table if you have ticked Option 4 above.

If you have ticked Option 1, 2, 3 or 5, do not complete this table.

This table lists some common life‑sustaining treatments. Use the boxes to indicate which treatments you consent or refuse consent to receiving. You can also list circumstances in which you consent to treatment. There is also space for you to add any life‑sustaining treatments not listed here.

Tick one box per row in the table below.

If you choose Option B for any treatments, please specify the circumstances in which you consent to the treatment.

Life‑sustaining treatment

I consent to this treatment in all circumstances

I consent to this treatment in the following circumstances

I refuse consent to this treatment in all circumstances

I cannot decide at this time

CPR

Cardiopulmonary resuscitation