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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read JH and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] WASAT 108
Decision Date: 29 NOVEMBER 2022

CaseChat Overview and Summary

The case before the court involved the validity of an advance health directive (AHD) made by a person, referred to as JH. The dispute centred on whether JH's AHD complied with the statutory requirements under section 110W of the Guardianship and Administration Act 1990 (WA). The matter was brought to the court to determine if the AHD was valid and whether the Tribunal had the jurisdiction to declare its validity. The Guardianship and Administration Act 1990 (WA) outlines the criteria for the validity of an AHD, including adherence to the form prescribed by regulations. The central legal issues included whether the AHD was in or substantially in the form prescribed by the regulations and if the failure to include a requirement encouraging the maker to seek legal or medical advice rendered it invalid.

The court examined the statutory provisions and the regulations under the Guardianship and Administration Act 1990 (WA). It considered whether the AHD contained the essential features required by the regulations. The court also reviewed the statutory requirement that the AHD should encourage the maker to seek legal or medical advice, as outlined in section 110Q of the Act. By examining the form and content of the AHD, the court determined whether the directive was substantially in compliance with the statutory form. The court also considered the implications of section 110Q(1)(d) and (e) and section 110Q(1)(b) and (2) of the Act, which pertain to the essential features and the consequences of non-compliance.

In its reasoning, the court concluded that although the AHD did not strictly adhere to the prescribed form in every respect, it was substantially in compliance with the essential features required by the regulations. The court found that the absence of a specific encouragement to seek legal or medical advice did not render the AHD invalid. The court also noted that the directive clearly expressed JH's treatment preferences and met the core requirements for validity. Therefore, the court declared the AHD to be valid and within the jurisdiction of the Tribunal to make such a declaration. This decision was grounded in the court's interpretation of the statutory provisions and the regulations, ensuring that the maker's wishes were respected in accordance with the law.

The final order of the court was to declare the AHD made by JH as valid. This declaration affirmed the Tribunal's jurisdiction to assess and validate the AHD under section 110W of the Guardianship and Administration Act 1990 (WA). The court's decision provided clarity on the requirements for the validity of an AHD and reinforced the importance of adhering to the statutory form, while also recognising that minor deviations do not necessarily invalidate the directive if the essential features are present.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GAA Act s. 3(1), definition of treatment decision GAA Act s. 110S(2) GAA Act s. 110ZJ GAA Act s. 110Q(1)(c) GAA Act s. 110Q(1)(d) and (e) and (3) Oaths, Affidavits and Statutory Declarations Act 2005 s. 12(6) and Sch. 2 GAA Act s. 110Q(1)(b) and (2) and 110QA

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.