Operation of advance health directive

Current

(1)

A direction in an advance health directive—

(a)

operates only while the principal has impaired capacity for the matter covered by the direction; and

(b)

is as effective as if—

(i)

the principal gave the direction when decisions about the matter needed to be made; and

(ii)

the principal then had capacity for the matter.

Note—

See also section 101 (No less protection than if adult gave health consent).

(2)

A direction to withhold or withdraw a life-sustaining measure can not operate unless—

(a)

1 of the following applies—

(i)

the principal has a terminal illness or condition that is incurable or irreversible and as a result of which, in the opinion of a doctor treating the principal and another doctor, the principal may reasonably be expected to die within 1 year;

(ii)

the principal is in a persistent vegetative state, that is, the principal has a condition involving severe and irreversible brain damage which, however, allows some or all of the principal’s vital bodily functions to continue, including, for example, heart beat or breathing;

(iii)

the principal is permanently unconscious, that is, the principal has a condition involving brain damage so severe that there is no reasonable prospect of the principal regaining consciousness;

Note—

This is sometimes referred to as ‘a coma’.

(iv)

the principal has an illness or injury of such severity that there is no reasonable prospect that the principal will recover to the extent that the principal’s life can be sustained without the continued application of life-sustaining measures; and

(b)

for a direction to withhold or withdraw artificial nutrition or artificial hydration—the commencement or continuation of the measure would be inconsistent with good medical practice; and

(c)

the principal has no reasonable prospect of regaining capacity for health matters.

Note—

life-sustaining measure is defined in schedule 2, section 5A.

(3)

An attorney’s power for a health matter under an advance health directive is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise.

Note—

However, the priority of an attorney’s power for a health matter is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(4).

(4)

While power for a health matter is exercisable under an advance health directive, the directive gives the attorney for the matter power to do, for the principal, anything in relation to the matter the principal could lawfully do if the principal had capacity for the matter.

(5)

However, the power given is subject to the terms of the advance health directive and this Act.

(6)

A person dealing with the attorney may ask for evidence, for example, a medical certificate, to establish that the principal has impaired capacity for the matter.

This Act’s bill:Explanatory memorandum

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36 Operation of advance health directive