2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to provide for directions about the withholding or withdrawal of medical treatment, and for related purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Medical Treatment (Health Directions) Act 2006.

This Act commences on the commencement of the Powers of Attorney Act 2006.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘decision-making capacity—see the Powers of Attorney Act 2006, section 9 (1).’ means that the term ‘decision-making capacity’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

The objectives of this Act are—

(a) to protect the right of patients to refuse unwanted medical treatment; and

(b) to ensure the right of patients to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances.

(1) This Act does not affect any right of a person under any other territory law to refuse medical treatment.

(2) This Act does not apply to palliative care and does not affect any right, power or duty that a health professional or anyone else has in relation to palliative care.

(3) The refusal or withdrawal of medical treatment under this Act does not limit any duty of a health professional or anyone else—

(a) to advise and inform the patient or the patient’s agent or guardian; or

(b) to provide medical treatment other than the medical treatment that has been refused or withdrawn.

(1) An adult can make a direction (a health direction) to refuse, or require the withdrawal of, medical treatment generally or a particular kind of medical treatment.

(2) A health direction may be made in writing, orally or in any other way.

(3) However, a health direction cannot be made by—

(a) a person for whom a guardian is appointed under the Guardianship and Management of Property Act 1991; or

(b) anyone else who has impaired decision-making capacity.

A written health direction is not valid unless—

(a) it is signed by the maker of the direction or by someone else in the presence of and at the direction of the person making the direction; and

(b) the signature is witnessed by 2 other people; and

(c) each witness signs the direction in the presence of the other witness and the person making the direction.

Note If a form is approved under s 21 for this provision, the form must be used.

(1) A health direction (other than a written direction) is not valid unless it is witnessed by 2 health professionals (1 of whom is a doctor) present at the same time.

(2) Subsection (1) is subject to section 6 (Other legal rights not affected) and section 11 (People with decision-making capacity to be informed of alternatives etc).

(1) A health direction to refuse, or for the withdrawal of, medical treatment may be revoked by the person who gave the direction clearly expressing to a health professional or someone else a decision to revoke the direction.

(2) For subsection (1), a person may clearly express or indicate a decision in writing, orally or in any other way.

(1) This section applies if—

(a) a person has made a health direction; and

(b) the person has decision-making capacity.

(2) Before complying with the health direction, a health professional treating the person must take all reasonable steps to ensure that the person has been informed about—

(a) the nature of the person’s illness; and

(b) any alternative forms of treatment that may be available; and

(c) the consequences of the available forms of treatment; and

(d) the consequences of remaining untreated.

(3) The health professional must not give effect to the health direction unless the health professional believes, on reasonable grounds, that the person—

(a) has understood the information provided under subsection (2); and

(b) has weighed the various options; and

(c) after weighing the options, has confirmed the decision—

(i) to refuse medical treatment; or

(ii) to have medical treatment withdrawn.

A health professional must not withhold or withdraw medical treatment from a person in accordance with a health direction unless the health professional believes, on reasonable grounds, that—

(a) the direction complies with this Act; and

(b) the person has not revoked the direction or changed the person’s decision since making the direction.

(1) This section applies if a health professional or someone else becomes aware that a patient in a health care facility—

(a) has made a health direction; or

(b) has revoked a health direction.

(2) The health professional or other person must tell the person in charge of the health care facility about the making or revoking of the health direction and the circumstances in which the direction was made or revoked.

If the person in charge of a health facility is told under section 13 about a patient making or revoking a health direction, the person must take reasonable steps to ensure that—

(a) a copy of the health direction or revocation is placed with the patient’s file; or

(b) if it is not possible to get a copy of the health direction or revocation—a note about the direction or revocation is placed with the patient’s file.

(1) This section applies if a health professional makes a decision honestly about whether a person—

(a) revoked, or intended to revoke, a health direction; or

(b) was, or was not, at the time of making a health direction, capable of understanding the nature and effect of the direction.

(2) Civil or criminal liability is not incurred only because of the making of the decision.

(1) This section applies to a health professional, or a person acting under the direction of a health professional, if—

(a) the health professional makes a decision that the health professional believes, on reasonable grounds, complies with this Act; and

(b) the health professional, or other person, honestly and in reliance on the decision, withholds or withdraws medical treatment from a person.

(2) The withholding or withdrawing of treatment is not—

(a) a breach of professional etiquette or ethics; or

(b) a breach of a rule of professional conduct.

(3) Civil or criminal liability is not incurred only because of the withholding or withdrawing of treatment.

(1) This section applies in relation to a person who—

(a) has given a health direction that medical treatment be withheld or withdrawn from the person; and

(b) is under the care of a health professional.

(2) The person has a right to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances.

(3) In providing relief from pain and suffering to the person, the health professional must give adequate consideration to the person’s account of the person’s level of pain and suffering.

(1) This section applies if—

(a) a person has made a health direction; and

(b) a doctor declares that the person has become a person with impaired decision-making capacity; and

(c) a guardian is appointed for the person under the Guardianship and Management of Property Act 1991 after the direction was made.

(2) Any power of the guardian to consent to medical treatment for the person must be exercised in a way that is consistent with the health direction.

(1) This section applies if—

(a) a person makes a health direction; and

(b) the person later makes an enduring power of attorney under the Powers of Attorney Act 2006; and

(c) the enduring power of attorney deals with health care matters.

(2) The health direction is revoked by force of this section.

(3) In this section:

health care matter, for a principal—see the Powers of Attorney Act 2006, section 12.

principal—see the Powers of Attorney Act 2006, section 6.

A person must not dishonestly induce someone else to make or revoke a health direction.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(1) The Minister may approve forms for this Act.

(2) If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.

Note The Legislation Act contains provisions about forms (see s 255).

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

The Executive may make regulations for this Act.

Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

The Medical Treatment Act 1994 A1994-72 is repealed.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• Act

• doctor

• nurse

• power.

day hospital means a facility where a person is admitted for surgical or medical treatment and discharged on the same day.

decision-making capacity—see the Powers of Attorney Act 2006, section 9 (1).

disability care means care that is provided to a person with a disability in a residential facility in which the person is also provided with accommodation that includes—

(a) appropriate staffing to meet the nursing and personal care needs of the person; and

(b) meals and cleaning services; and

(c) furnishings, furniture and equipment for the provision of the care and accommodation.

health care facility means a hospital, residential aged care facility or residential disability care facility.

Note Hospital, residential aged care facility and residential disability care facility are defined in this dictionary.

health direction means a direction under section 7.

health professional means a doctor or nurse.

hospital means a public hospital, private hospital or day hospital.

impaired decision-making capacity—see the Powers of Attorney Act 2006, section 9 (2).

palliative care includes—

(a) the provision of reasonable medical and nursing procedures for the relief of pain, suffering and discomfort; and

(b) the reasonable provision of food and water.

residential aged care facility means a residential facility that provides residential care to residents at the facility.

residential care—see the Aged Care Act 1997 (Cwlth), section 41-3 (Meaning of residential care).

residential disability care facility—

(a) means a residential facility that provides disability care to people with disabilities; but

(b) does not include a residential aged care facility.

Presentation speech made in the Legislative Assembly on 2006.

Notified under the Legislation Act on 2006.

For the latest republication of amended laws, see www.legislation.act.gov.au.