In the Australian Capital Territory (ACT) a person can make a 'Health Direction' (a statutory Advance Directive).
Health Directions are created and regulated by the Medical Treatment (Health Directions) Act 2006 (ACT).
Does the Australian Capital Territory have both common law Advance Directives and statutory Advance Directives (Health Directions)?
Yes. A person may create both a common law Advance Directive and/or a statutory Advance Directive (a Health Direction), and both types of directives are recognised by the law in the ACT.
When will a Health Direction apply?
The ACT law does not require a person to have impaired decision-making capacity in order for a Health Direction to operate. It is effective both when the person has capacity, or lacks capacity.
However, if a person has decision-making capacity, a health professional must:
- take reasonable steps to provide information about the health care to the person; and
- decide whether the person still wishes to refuse medical treatment, or have treatment withdrawn.
What can a Health Direction cover?
A Health Direction can refuse any medical treatment (including life-sustaining medical treatment) or require the treatment be withdrawn.
What are the formal requirements to make a Health Direction?
To make a Health Direction, a person must have decision-making capacity (i.e. they are able to make decisions in relation to their own affairs, and understand the nature and effect of those decisions). A person must not have a guardian appointed, or have made the Health Direction as a result of undue influence or inducement.
Health Directions can be oral or in writing. However, a written Health Direction must be:
- in the prescribed form;
- signed by the person (or someone in the presence of the person, instructed on their behalf); and
- witnessed by two witnesses at the same time.
An oral (non-written) Health Direction must be witnessed by two health professionals (one of whom is a doctor).
Does a person have to receive information about the treatment they are requesting or refusing in the Health Direction?
At the time of making the Health Direction, a person does not have to receive information about the treatment they want to refuse or request.
However, if the person has completed a Health Direction and still has decision-making capacity when the time comes to make a decision about medical treatment, the health professional:
- must ensure the person is informed about his or her condition, treatment options and their consequences; and
- can only follow the Health Direction if he or she believes the person who made the Health Direction understands the information, can weigh the treatment options, and has confirmed the decision to refuse treatment, or have treatment withdrawn.
Can someone be appointed in a Health Direction to make health decisions for the person?
No. However, a person with decision-making capacity can appoint an attorney to make decisions for them about health care matters when they can no longer make decisions for themselves. This is done using a separate document called an Enduring Power of Attorney.
‘Health care’ includes withholding or withdrawing life-sustaining treatment, but only if starting or continuing that treatment would be inconsistent with good medical practice.
Can a Health Direction be revoked (cancelled)?
Yes. While a person still has capacity, a person can revoke (cancel), either in writing or orally, a Health Direction that refuses or withdraws treatment. The revocation can be made to a health professional or anyone else.
Can a health professional decide not to follow a Health Direction?
A health professional does not have to follow a Health Direction if:
- he or she believes it does not comply with the formal requirements; and/or
- it is thought the person revoked, or intended to revoke the Health Direction.
Is there a right to relief from pain and suffering?
Where a person has directed that medical treatment be withheld or withdrawn, he or she has a right to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances. In providing the pain relief, the health professional must consider the person’s account of their level of pain and suffering.
For more information on Health Directions in the Australian Capital Territory, visit the Public Trustee and Guardian.