Statutory Direction to Refuse Extraordinary Measures
The Natural Death Act 1988 (NT) provides for a Direction to Refuse Extraordinary Measures (‘Direction’). The purpose of the legislation is to ‘give legal effect to directions against artificial prolongation of the dying process’ through the use of extraordinary measures in cases of terminal illness. ‘Extraordinary measures’ include measures intended to prolong life through replacing or maintaining bodily functions that are otherwise incapable of independent operation.
There is no statutory advance health directive for other forms of non‑terminal illness, though common law principles apply (see below).
Requirements of a Valid Direction
In order for a Direction to be valid:
- it must be made and signed by a person 18 years or over of sound mind;
- it must be in the form prescribed by regulation; and
- it must be witnessed by two ‘authorised witnesses’.
If the Direction is validly signed and witnessed, a medical practitioner responsible for treatment has a duty to act in accordance with the Direction, once they are aware of its existence. This duty exists unless the treating medical practitioner has reasonable grounds to believe that the person has revoked, or intended to revoke the Direction, or was not capable of understanding the nature and consequences of the Direction at the time it was made.
Common Law Advance Health Directives
The Natural Death Act does not affect the right of a person to refuse general medical or surgical treatment (as opposed to extraordinary measures). This means that the common law continues to operate with regard to advance directives in the NT.
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 was made and was 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.
Further Information including relevant forms: