Northern Territory

When will a substitute decision-maker be needed to make health care decisions for another person at the end of life?

A person is presumed to have capacity to make health care decisions. A person will have decision-making capacity if he or she can:

• understand and retain information about the matter;
• weigh the information in order to make a decision; and
• communicate that decision in some way.

If a person does not meet these criteria they will have impaired decision-making capacity. A person’s capacity may be impaired even if:

• the impairment is episodic and from time to time their decision-making capacity is not impaired;
• his or her capacity for some personal or financial matters is not impaired; or
• the extent of impairment varies from time to time or depending on the circumstances.

Where a person has impaired decision-making capacity, a substitute decision-maker will need to make the health care decision. This situation may arise when a person nears the end of their life. The substitute decision-maker’s decision has the effect of being as though the person without capacity had made the decision.

A person does not have impaired decision-making capacity just because he or she:

• has a disability, illness or other medical condition;
• engages/engaged in unconventional behaviour or other forms of personal expression, particular cultural or religious practices, or illegal or immoral conduct;
• chooses a living environment or lifestyle or makes decisions with which other people do not agree;
• does not speak English to a particular standard, or at all; does not have a particular level of literacy or education; or does or does not express a particular religious, political or moral opinion;
• is of a particular sexual orientation or gender identity or expresses particular sexual preferences; or
• takes/has taken, or is/has been dependent on alcohol or drugs (but the effect of alcohol or drugs may be considered in determining whether the person has impaired decision-making capacity).

Find out more about the law on capacity in the Northern Territory at Capacity and consent to medical treatment.

Who can be a substitute decision-maker for health care decisions at the end of life?

If a person who has lost capacity has an Advance Personal Plan making an advance consent decision about their health care or medical treatment, that direction must be followed. The person may also have appointed a substitute decision-maker in an Advance Personal Plan (known as an Advance Personal Plan decision-maker) who, depending on the matters for which they are appointed, may be able to make a decision for the person.

If there is no Advance Personal Plan, no Advance Personal Plan decision-maker, or a person has a Plan but it does not contain an advance consent decision, a guardian can be appointed by the NTCAT (provided the person with impaired capacity is in need of a guardian). The Tribunal may appoint any of the following as guardian for health care decisions:

• anyone aged 18 and over, so long as they consent to the appointment and the Tribunal believes they are a suitable person to be a guardian, or


• the Public Guardian.

Unlike other Australian jurisdictions, the Northern Territory does not recognise default decision-makers. Therefore, if a consent decision is needed but the person does not have:

• an Advance Personal Plan containing an advance consent decision about medical treatment, or
• an available consenter (either an Advance Personal Plan decision-maker with power to make the decision, or a guardian who is willing and able to make a consent decision)

the NTCAT can make the consent decision i.e. decide whether to give or refuse consent to treatment.

What is the role of the Northern Territory Civil and Administrative Tribunal (NTCAT) in relation to decision-making at the end of life?

The NTCAT is an independent Tribunal that has the power to:

• appoint guardians and make guardianship orders;
• review, vary, amend or revoke guardianship orders; and
• make orders about how a guardian must exercise their authority, and in what circumstances.

In limited cases the NTCAT can make a consent decision (either giving or refusing consent) about health care action, including withholding or withdrawing life-sustaining treatment. This will only occur where:

• the person with impaired capacity has not made an advance consent decision about the health care action, or the NTCAT has ordered the person’s advance consent decision in an Advance Personal Plan be disregarded; and
• there is no one else available and willing to make the decision.

If the NTCAT makes a consent decision ordering a course of action (e.g. medical treatment) be provided over a period of time, a later consent decision to withhold or withdraw the health care can only be made by the NTCAT, a decision-maker authorised by the NTCAT, or the Public Guardian.

The NTCAT is also able to decide applications for consent to health care actions, and applications by a health professional for urgent health care action. Where the consent decision is urgently required, the NTCAT must make a decision about how to proceed with the application within 24 hours.

The Tribunal must act in accordance with the guardianship principles for guardianship matters, and the decision-making principles for matters relating to an Advance Personal Plan.

For more information visit the NTCAT.

What is the role of the Public Guardian in relation to decision-making at the end of life?

The Public Guardian is an independent office created under the Guardianship Act and has a number of functions relating to substitute decision-making at the end of life.

The Public Guardian can be appointed by:

• the person as their Advance Personal Plan decision-maker; or
• the Northern Territory Civil and Administrative Tribunal (the NTCAT) as the person's guardian if no one else is eligible.

It can also:

• act as a guardian where a person’s appointed guardian cannot due to illness, absence or another cause; and
• make decisions about health care actions, including withholding or withdrawing life-sustaining treatment.

The Public Guardian must act in accordance with the guardianship principles. If appointed as an Advance Personal Plan decision-maker it must apply the decision-making principles. The NTCAT may also gives orders in relation to the exercise of the Public Guardian's powers, which must be followed.

For more information visit the Office of the Public Guardian.

What health care decisions can a substitute decision-maker make?

The types of health care decisions that a guardian can make will depend on their appointment by the NTCAT. The Tribunal must specify in a guardianship order whether the guardian has powers for decision-making about personal or financial matters, or both of these. Personal matters include decisions about health care. The guardian is able to do anything on behalf of the person that the person could lawfully have done if they had capacity, subject to the terms of the guardianship order and the Guardianship Act.

If the order authorises a guardian to make decisions about health care actions, the guardian can make consent decisions (i.e. giving or refusing consent) about those health care actions (including commencing, continuing, withholding or withdrawing health care, including life-sustaining treatment) unless:

• the person has made an advance consent decision (under the APP Act) about the health care action; or
• the NTCAT has ordered a person’s advance consent decision be disregarded and:
  • the NTCAT has made an advance consent decision about the health care action; or
  • someone else, such as a guardian or another decision-maker, make a consent decision.

As discussed earlier, in limited circumstances the NTCAT will have power to make the consent decision, including the power to give or refuse consent to treatment.

How do substitute decision-makers make decisions?

When deciding whether or not to consent to health care for a person at the end of life, an Advance Personal Plan decision-maker must act in accordance with the decision-making principles.

Guardians must act in accordance with the guardianship principles which require the guardian to act and make decisions in the person’s best interests. This includes considering:

• the person’s current and previously stated views and wishes;
• any views and wishes of an interested person for the adult;
• maintaining the person’s freedom of decision and action to the greatest extent possible;
• providing the person with appropriate care, including health care;
• maintaining the person‘s right to be treated with dignity and respect; and
• protecting the person from harm, neglect, abuse and exploitation.

A guardian should also decide in a way that is least restrictive of the person’s freedom of decision and action, and support the person as much as possible to make a decision for themselves.

Where the person has made an advance care statement, the guardian must give effect to the statement even if it is not in the person’s best interests. The only exceptions to this are:

• If the person still has capacity and states he or she does not want to give effect to the statement.
• It is impracticable, unlawful, onerous or unreasonable to make the decision the person would have made.
• There is no reasonable possibility the person would have intended the advance care statement to apply in the circumstances.

Can health professionals withhold or withdraw treatment without the consent of a person's substitute decision-maker?

No. It is considered unprofessional conduct if a health professional performs a health care action, including withholding or withdrawing life-sustaining treatment, without consent on a person with impaired capacity. The only time a health professional can act without consent is if there are other laws in the Northern Territory which allow this to occur i.e. in an emergency situation.

Health professionals have no duty to treat a person if the treatment would be of no benefit, not in the person’s best interests, or futile. This is the case even if a person's substitute decision-maker requests treatment. Where treatment is futile or non-beneficial, a health professional is not required to obtain consent to the withholding or withdrawing of such treatment (though, as a matter of practice they may wish to do so).

Find out more about the law on futile or non-beneficial treatment at Adult Treatment Decisions.

When can emergency treatment be provided, and is consent required?

Under the Emergency Medical Operations Act 1973 (NT) a medical practitioner can perform a surgical operation on a person without consent if he or she believes the person is in danger of dying or suffering a serious permanent disability, and the operation is needed to prevent this.

However, if the person has impaired capacity, a medical practitioner cannot perform an operation unless it is not possible to delay the operation until:

• they can determine if an advance consent decision has been made, or
• a consent decision can be given by a substitute-decision maker, the Northern Territory Civil and Administrative Tribunal or anyone else.

If the medical practitioner knows the person made an advance consent decision refusing consent for the operation, or that a substitute decision-maker has refused consent, then the operation cannot be performed.

If the proposed treatment is not a surgical operation, the common law will allow treatment to be given in an emergency to a person who cannot consent, unless it has been refused by the person or their substitute decision-maker.

Find out more about the law on emergency treatment at Capacity and consent to treatment.