Today’s correspondent asked to me to:

… explain simply the difference between an enduring power of guardianship and an authoritative health directive, when they are needed and whether they are legally binding and if one overrides the other?

The simple difference is that appointing an enduring guardian is nominating a person to make decisions for you. Setting out an ‘authoritative health directive’ is making and communicating your own decision. Enduring guardians have to make decisions in the best interest of the person for whom they are a guardian and in accordance with their known preferences and wishes so an authoritative health directive would override, or limit an enduring guardian’s decision.

To give a longer answer, with reference to law, I’ll use Victoria as my example as not every state, and that includes NSW, has binding legislation on ‘authoritative health directives’.  The relevant Act in Victoria is the Medical Treatment Planning and Decisions Act 2016 (Vic).

Instructional directive

An ‘instructional directive’ (s 6(1)) is:

(a) is an express statement in an advance care directive of a person’s medical treatment decision; and

(b) takes effect as if the person who gave it has consented to, or refused the commencement or continuation of, medical treatment, as the case may be.

The following examples are given in s 6:

A statement that a person consents to a heart bypass operation in specified circumstances.

A statement that a person refuses cardiopulmonary resuscitation.

Where a health practitioner proposes to administer medical treatment, the practitioner must ‘give effect to any relevant instructional directive’ (s 60).

Conclusion on instructional directive

Where a person has given an ‘instructional directive’ then that is their consent, or refusal of consent, to the treatment and a health practitioner can rely on that to make decisions to give, or withhold treatment in accordance with that directive.

Medical Treatment Decision Makers

A person can appoint another person to be their ‘appointed medical treatment maker’ (s 26). Where there is no relevant ‘instructional directive’ a health practitioner must look to the appointed medical treatment maker to give or refuse consent to care. That person ‘must make the medical treatment decision that the medical treatment decision maker reasonably believes is the decision that the person would have made if the person had decision-making capacity’ (s 61).

If the person has made a statement that they do not want particular care, or that it is contrary to their values, then the medical treatment decision maker would be required to honour those views.

Conclusion on medical treatment decision maker

The medical treatment decision maker cannot make a decision inconsistent with a instructional direction. In other cases the medical decision maker must consider any express statement of patient values and what they know of the patient to make the decision that they believe the patient would make if they could.

Other states and territories

Without tracing every Act the law is going to be of similar effect in all Australian states and territories even if the name of the documents or the title of the decision makers vary.

As I said NSW does not have binding ‘advance care directive’ legislation but people can still make statements about what care they do or do not want and that should be honoured.  The common law does not permit treatment of those that cannot make their own decisions where that treatment is contrary to their known wishes (see Legal justification for treating the unconscious (April 11, 2021)).

An enduring Guardian (appointed under the Guardianship Act 1987 (NSW)) sits at the top of the list as a ‘person responsible’ for an incapable patient (s 33A). As the person responsible they can give consent to treatment but in making a treatment decision they must ‘have regard to: (a) the views (if any) of the patient …’ (s 40).  Accordingly they must consider, and should honour, anything the patient has said about their wishes for care and any treatment that they do, or do not want (see also NSW Health ‘Making an Advance Care Directive’ (2022).

Conclusion

An enduring guardian, or enduring attorney, or medical decision maker (the terms vary from jurisdiction to jurisdiction) is a person appointed to make medical decisions on behalf of a person when they are no longer able to make or communicate their own decisions,

An advance care directive, a health directive, an instructional directive (again the terms vary from jurisdiction to jurisdiction) is a binding statement by the person of about treatment that they want, or do not want. They serve to communicate the patient’s wishes. They are binding in the same way a patient’s competent decision to consent to or refuse consent to treatment is binding.

The advance care directive limits the power of the substitute decision maker. In some states if there is an advance care directive the substitute decision maker is not involved. In other case (eg NSW) or where the advance care directive does not clearly apply in the circumstances that have arisen, the substitute decision maker must consider the patient’s expressed wishes and attempt to make the decision the patient would make if they could.  To that extent the advance care directive ‘overrides’ or limits the power of a substitute decision maker.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.