Northern Territory

Important terminology

Under the Act:

• Advance consent decision means a consent decision about a health care action, set out in an Advance Personal Plan.

• Advance care statement is a statement in an Advance Personal Plan which sets out the views, wishes and beliefs of the person making it, to help guide decision-makers if the person loses capacity.

• Consent decision is a decision to give or refuse consent to a health care action.

• A person has decision-making capacity if they do not have impaired capacity. Visit the Capacity webpage to learn about when a person will have capacity in the Northern Territory.

• Health care action means commencing, continuing, withdrawing or withholding health care.

• Health care is any kind of health care, including or provided as part of the following services:
  • services provided by health practitioners;
  • hospital, mental health, pharmaceutical, ambulance, community health, health education, and pathology services;
  • welfare services related to any of the above;
  • services provided by dietitians, massage therapists, naturopaths, social workers, speech pathologists, and audiologist; the removal of tissues from a person’s body; or
  • an assessment conducted by a health care provider to assess current or future health care requirements e.g. an aged care assessment.

• A person will have planning capacity if they have decision-making capacity for an Advance Personal Plan, and they do not have a guardian.

Does the Northern Territory have both common law Advance Care Directives and statutory Advance Care Directives (Advance Personal Plans)?

Yes. A person may create both a common law Advance Care Directive and/or a statutory Advance Care Directive i.e. an Advance Personal Plan. Both types of Directives are recognised by the law in the Northern Territory.

The information below applies only to Advance Personal Plans. For more information visit Common Law Advance Care Directives.

When will an Advance Personal Plan apply?

An Advance Personal Plan will come into force once it is made. The directions in it will apply when the person loses capacity, and the directions relate to the treatment situation that has arisen. Learn more about the Northern Territory's law on capacity at Capacity and consent to medical treatment.

The plan will remain in force until:

• it is revoked (i.e. cancelled) by the person who made it, or by the Northern Territory Civil and Administrative Tribunal (NTCAT);
• the person who made it dies;
• if it was for a limited period only - when that period ends; or
• if the plan appoints a decision-maker but there is no advance consent decision or advance care statement in the plan, the person ceases to be a decision-maker.

Where there is no advance consent decision made in an Advance Personal Plan, a health care decision-maker or the Public Guardian may have authority to decide.

Before administering health care to an person with impaired capacity, a health care provider must make reasonable efforts to find out whether the person made an advance consent decision in relation to the health care. If there is an advance consent decision, a health care provider can administer the health care without the consent of a health care decision-maker.

If, after reasonable efforts, the health care provider is not aware of an advance consent decision, they must make reasonable efforts to contact the appropriate health care decision-maker. They must keep written records of their efforts. Learn more in the NT Public Guardian’s Initial responsibilities of a health care provider guideline.

What can an Advance Personal Plan cover?

In an Advance Personal Plan, a person can:

• make an advance consent decision,
• make an advance care statement, and/or
• appoint a substitute decision-maker to make health care decisions.

A statement will be an advance consent decision if it:

• provides consent or refuses consent to health care action, or
• would be reasonable to conclude from the statement that the person would or would not want the health care action to be taken, in the circumstances.

The Act gives the following examples of advance consent decisions:

1. A statement that “I do not want to be given a blood transfusion in any circumstances”. This statement refuses consent for a blood transfusion.


2. A statement that “If I have a terminal illness and am going to die soon, I do not want to be given treatment just to keep me alive for a little bit longer – just keep me pain free". This may constitute consent for a terminally ill person to be given pain relief and for other treatment to be stopped.

A statement that is not specific enough to be an advance consent decision but can still guide decision-making is an advance care statement. This statement may set out the person’s views, wishes and beliefs to help decision-makers decide for a person who has lost capacity. An example of an advance care statement in the Act is: “I want all decisions that are made for me to be made strictly in accordance with my religious belief as a Catholic”.

What are the formal requirements to make an Advance Personal Plan?

To make an Advance Personal Plan, a person must:

• be over 18 years old;
• have decision-making capacity, and not have had a guardian or manager appointed for their personal or financial matters; and
• have made the plan voluntarily, without coercion or undue influence.

An Advance Personal Plan must be:

• in writing, either using the prescribed form, or in writing in accordance with any requirements outlined in regulations;
• signed by the person or, if the person can’t sign, a person’s representative (who must be at least 18 years old and not a decision-maker for the person); and
• witnessed by an authorised witness who is required to certify that:
• the person making the plan:
  • is who they say they are;
  • is at least 18 years old;
  • understands the nature and effect of the plan;
  • is making the plan voluntarily; and
• the plan was signed by the person or their representative in the presence of the witness.

For information about who can be an authorised witness visit the Northern Territory Government.

If the formal requirements are not met, the NTCAT has the power to declare that a plan is still valid. The Northern Territory Government has a register of Advance Personal Plans maintained by the Public Trustee. People can apply to register their Advance Personal Plan, to ensure safekeeping and to make the plan available to others (such as health professionals) so they are aware of the plan and its terms.

Does a person have to receive information about the treatment they are requesting or refusing in an Advance Personal Plan?

No, as long as the person meets the requirement of having capacity, they do not have to receive any information about the treatment they are requesting or refusing in the Advance Personal Plan.

However, the Northern Territory Civil and Administrative Tribunal has the power to order that an advance consent decision be disregarded on the grounds it was not an informed decision.

Can a person make more than one Advance Personal Plan?

Yes. In the Northern Territory a person may make as many Advance Personal Plans as they wish. If there are two plans that are inconsistent, the most recent plan will apply in relation to the inconsistency. If the person appoints two decision-makers for the same matter in two plans, that is not necessarily an inconsistency. In those situations, the NTCAT can make a declaration about the effect or meaning of the plan/s, and can make orders about inconsistency of decision-makers.

Who can be appointed as a decision-maker under an Advance Personal Plan and what are their powers?

In an Advance Personal Plan, a person can appoint another person to be their decision-maker for health care in the event they lose capacity (an Advance Personal Plan decision-maker). The decision-maker can only make those decisions when the person has lost capacity. They may be a person over the age of 18, a trustee company, the Public Trustee, or the Public Guardian.

A person can give an Advance Personal Plan decision-maker power to consent to health care, including withholding or withdrawing life-sustaining medical treatment. If a person does not specify which health care decisions a decision-maker is appointed for, the decision-maker will be able to make decisions about all health care.

The person can restrict or limit the power given to the decision-maker so that they can only make decisions in particular circumstances or for certain medical treatment. A person can also use their plan to instruct the decision-maker to follow certain requirements before consenting to medical treatment.

The Advance Personal Plan decision-maker will be prioritised before others as the person’s health care decision-maker (so long as they have authority for the health care decision required).

How does a decision-maker make decisions?

When making decisions, the Advance Personal Plan decision-maker must comply with the decision-making principles stated in the Act, and must act honestly and with care, skill and diligence. The decision-making principles require the decision-maker to:

• make decisions in accordance with the person's advance care statement (subject to some exceptional circumstances, discussed below).


• where there is no advance care statement, make decisions in the way they believe the person would have done in the circumstances. This involves taking into account:
  • the person’s current and previously stated decisions, views, wishes and objections about the matter; and
  • the decision-maker's personal knowledge of the person.

The decision-maker must make the decision the person would have wanted even though it might not be in the person’s best interests.

If the decision-maker does not know what the person would have wanted, they must make a decision they believe is in the person’s ‘best interest’. To determine this, they must consider factors including:

• protecting the person from harm, neglect, abuse and exploitation;
• providing the person with appropriate care;
• protecting the person's freedom of decision and action;
• enabling the person to be as independent as practicable;
• maintaining the person's right to be treated with dignity and respect;
• enabling the person to maintain their preferred living environment and lifestyle;
• maintaining or creating a positive support network for the person.

The decision-maker must assess these factors by giving each of them the weight the decision-maker believes is appropriate. This involves deciding in a way that:

• is the least restrictive of the person’s freedom of decision and action as is practicable, and
• provides the person with as much support as is practicable to make the person’s own health care decisions.

Exceptions

There are some exceptions to when a person’s advance care statement must be followed by an Advance Personal Plan decision-maker or other health care decision-makers:

• if the person made, when they had capacity, a subsequent written declaration stating they do not want to give effect to the advance care statement; or
• there is no reasonable possibility the person would have intended the statement to apply in the circumstances.

These decision-makers are not required to comply with the advance care statement, or decide in the way they believe the person would have done, if doing so would:

• be impracticable or unlawful; or
• impose a burden on another person that is so unreasonably onerous that it is justifiable to override the person’s wishes; or
• be so unreasonable that it is justifiable to override the person’s wishes.

The decision-maker must keep a written record of reasons for not complying with the advance care statement.

Can an Advance Personal Plan be amended or revoked (cancelled)?

Yes. A person may amend or revoke (cancel) the Advance Personal Plan at any time while they have planning capacity. The revocation or amendment must comply with the same formal requirements for making a plan.

If a person does not comply with those requirements, the NTCAT may still declare the amendment valid. The NTCAT also has power in some situations to amend or revoke a plan made by a person who no longer has capacity, including if the person has had a major change of circumstances (i.e. the decision-maker appointed loses capacity, or has been convicted of an offence that makes it unsuitable for him or her to be a decision-maker).

Can a health professional decide not to follow an Advance Personal Plan?

An Advance Personal Plan must be followed by a health professional, unless the NTCAT orders that it is invalid or can be disregarded.

The NTCAT may override an advance consent decision if:

• there is no reasonable possibility that the person would have intended it to apply in the circumstances; or
• it was not an informed decision; or
• following the decision would cause the person unacceptable pain and suffering, or would be so unreasonable that overriding the person’s wishes is justifiable.