Statutory Health Direction
The Medical Treatment (Health Directions) Act 2006 (ACT) provides for a statutory directive called a ‘health direction’.
A Health Direction enables an individual to direct that medical treatment generally be withheld or withdrawn or to list specific medical treatments to be withheld or withdrawn. Note that a Health Direction cannot be used to refuse palliative care. A Health Direction must be made voluntarily and without inducement or compulsion.
A health professional is only required to comply with a Health Direction if all reasonable steps have been taken to ensure that the person has been informed about the nature of their illness, the availability and consequences of alternative forms of treatment and the consequences of remaining untreated. They must also ensure that they believe on reasonable grounds that the person in question understands the information provided, has thought about the options and has confirmed the decision to withdraw or refuse medical treatment.
Written Health Directions
A Health Direction can be signed by an adult 18 years of over who does not have impaired decision-making capacity and who does not have an appointed guardian. The form must be witnessed by two people and is available for download below.
If a person with a Health Direction later develops impaired decision-making capacity and has a guardian appointed, the guardian must consent to or refuse medical treatment in a manner consistent with the Health Direction.
The form will be valid as long as it is not inconsistent with an enduring power of attorney for health care matters. It will be revoked if an enduring power of attorney is appointed subsequent to the signing of the Health Direction.
The Health Direction can also be revoked if the person in question clearly expresses a wish that it be revoked.
Once the form is signed, decisions relating to the withholding or withdrawal of treatment are to be made according to the instructions on the form.
Non-written Health Directions
The Medical Treatment (Health Directions) Act 2006 (ACT) also provides for non-written, or oral, Health Directions. Non-written Health Directions must be simultaneously witnessed by a doctor and another health professional.
A non-written Health Direction can also be revoked if the person clearly expresses a wish that it be revoked.
Common Law Advance Health Directive
The Medical Treatment (Health Directions) Act 2006 (ACT) provides that that the Act does not affect any right of a person under any other territory law to refuse medical treatment. This means that the common law continues to operate with regard to advance directives in the ACT. In 2009, the ACT Supreme Court in ACT v JT found that the refusal of life-sustaining care by a man who lacked capacity was not a valid directive.
An advance health directive may be valid at common law if all of the following conditions are satisfied:
1 Capacity: The adult must have had capacity at the time the advance health directive is made and is able to communicate the decision in some way.
2 Voluntariness: The directive must be made voluntarily without coercion or undue influence.
3 Specificity: The adult intended the refusal to apply to the specific situation that later arose.
There are no formal requirements at common law that that mean an advance health directive needs to be in writing and be witnessed, though these elements will be persuasive in suggesting that the directive has been made and meets the requirements.
If a health professional fails to comply with an advance care directives that meet the relevant standards, this may constitute a common law assault or battery.
Further information, including relevant forms, is available from the following links:
Public Advocate of the ACT