In the Northern Territory a person can make an ‘Advance Personal Plan’ (a statutory Advance Directive).
Key legislation and terminology
Advance Personal Plans are created and regulated by the Advance Personal Planning Act 2013 (NT) (the Act).
Under the Act:
- Health care action means commencing, continuing, withholding or withdrawing health care for the person.
- A consent decision is a decision to give or refuse consent to the health care action.
- An advance consent decision means a consent decision about health care action, set out in an Advance Personal Plan.
- An 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.
- A person will have planning capacity if he or she has decision-making capacity for an Advance Personal Plan, and does not have an Adult Guardian.
Does the Northern Territory have both common law Advance Directives and statutory Advance Directives (Advance Personal Plans)?
Yes. A person may create both a common law Advance Directive and/or a statutory Advance Directive (an Advance Personal Plan), and both types of directives are recognised by the law in the Northern Territory.
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.
The plan will remain in force until:
- it is revoked 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
- a decision-maker appointed in the plan ceases to be the decision-maker, and there is no advance consent decision or advance care statement in the plan.
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:
- A statement that “I do not want to be given a blood transfusion in any circumstances”. This statement refuses consent for a blood transfusion.
- 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; and
- 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 he or she is requesting or refusing in an Advance Personal Plan?
No, as long as the person meets the requirement of having capacity, he or she does not have to receive any information about the treatment they are requesting or refusing in the Advance Personal Plan.
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 he or she wishes. 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 he or she loses capacity. The decision-maker can only make those decisions when the person has lost capacity. A decision-maker may be a person over the age of 18, a trustee company, the Public Trustee, or the Public Guardian.
A person can give a decision-maker the power to consent to health care, including withholding or withdrawing life-sustaining medical treatment. If a person does not specify which matter/s a decision-maker is appointed for, the decision-maker will be able to make decisions about all matters.
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.
How does a decision-maker make decisions?
When making decisions, the 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 an advance care statement made by the person (subject to some exceptional circumstances), and give effect to the statement in the way he or she believes the person would have done in the circumstances.
- where there is no advance care statement, make decisions in the way he or she believes the person would have done in the circumstances. This includes seeking the person’s current views and wishes (if possible), taking into account their previously stated views and wishes, and consulting other people who may have information to assist in deciding what the person would have done.
This process is known as exercising substituted judgment.
If the decision-maker cannot determine what the person would have done in the circumstances, he or she must act in a way that is in the person’s best interests, taking into account considerations such as:
- providing appropriate care to the person, including taking appropriate health care action;
- maintaining the person's right to be treated with dignity and respect;
- protecting the person's freedom of decision and action; and
- protecting the person from harm, neglect, abuse or exploitation.
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 he or she has 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 an advance consent decision in a plan can be disregarded.
The NTCAT may override the advance consent decision if:
- it is not reasonably possible that the person would have intended the advance consent decision to apply in those circumstances; or
- following the advance consent decision would cause the person unacceptable pain and suffering, or is so wholly unreasonable that overriding the person’s wishes is justifiable.
For more information on Advance Personal Plans in the Northern Territory, visit the Northern Territory Department of Attorney-General and Justice.