The information on this page relates specifically to advance care planning laws in the Northern Territory (NT). Find out how to create your plan in the Northern Territory.
Law and policy in Australia and the NT
All states and territories have law and/or policy related to advance care planning to support person-centred medical treatment decision-making and advance care directives.
In the NT, both statutory and common law advance care directives exist and are legally binding. These can include a person’s values, preferences for future treatment (consent to, refusal of and/or withdrawal of treatment) and appointment of a substitute decision-maker. They should be completed and signed by a competent adult. Preferably, they should be stored and accessed via My Health Record.
In the NT, a person with decision-making capacity can:
- appoint a substitute decision-maker
- complete an instructional and/or values advance care directive
An advance care directive and the role of the substitute decision-maker comes into effect when the person loses decision-making capacity.
A substitute decision-maker can make medical treatment decisions on behalf of a non-competent person.
In the NT, the substitute decision-maker can be:
- chosen and appointed by the individual as a decision-maker(s)
- a guardian appointed by the Northern Territory Civil and Administrative Tribunal (NTCAT)
- a person appointed by principal or adult guardian appointed by a tribunal (i.e. available consenter), who is willing and able to make an informed consent decision. No hierarchy specified
An attorney appointed prior to legislative change for appointing ‘decision-makers’ is still recognised as a valid appointment.
An appointment by NTCAT overrides all other appointments.
Appointing a decision-maker
A decision-maker appointment should be on the recommended Advance Personal Plan form or similar. It must be written in English and contain details of the appointer and person(s) being appointed.
Document signing must be witnessed by a qualified witness. More than one person can be appointed, and they can be appointed to act jointly or severally. The person(s) being appointed must be at least 18 years old.
The decision-maker(s) can consent to, refuse or withdraw treatment on behalf of the person. They must act in accordance with any lawful limitations or conditions contained in the form. They must make the decision they believe the person would make (i.e. substituted judgement).
Advance Personal Plan
Only people with decision-making capacity can complete an Advance Personal Plan. An Advance Personal Plan should be on the recommended Advance Personal Plan form or a similar document that meets all formalities.
It may contain:
- instructional directives - a person can provide specific directions about treatment that they would consent to, refuse and/or withdraw
- values directive - a person can describe their more general views regarding their values and preferences for care
An Advance Personal Plan must be written in English, include the person’s full name, date of birth, address, and be signed.
The Advance Personal Plan must be signed by the person in front of a qualified witness. The witness must certify that the person completing the directive or making the appointment has decision-making capacity, and that they acted freely and voluntarily.
A completed Advance Personal Plan may be registered with the Public Trustee.
The role of advance care directives when making medical treatment decisions
An Advance Personal Plan is the only advance care directive in the Northern Territory.
Any person with decision-making capacity is able to make their own decisions, including decisions related to life-saving treatment. All adults are presumed to have capacity unless there is evidence to suggest otherwise.
Consent must be obtained before any treatment is provided, withheld or withdrawn. If a person does not have decision-making capacity, all reasonable efforts must be made to locate an advance care directive and identify a decision-maker. The only exception to this is when emergency treatment is required and an advance care directive or decision-maker is not available.
If there is an instructional directive or advance consent decision refusing medical treatment, a health practitioner cannot provide treatment. A decision-maker cannot override a valid instructional directive or advance consent decision.
If there is a values directive or advance care statement and the person has not completed an advance consent decision, the decision-maker is required to provide informed consent before treatment is provided. The decision-maker and the health practitioner must consider the information in the values directive or advance care statement, but it is the decision-maker who is required to make the decision.
If an advance care directive or decision-maker cannot be located, NTCAT can provide guidance on the process for proceeding.
Changes and revocation
Multiple Advance Personal Plans can exist, however when there are inconsistencies, the most recent plan will apply in relation to the inconsistency. It ends when a person with capacity revokes their Advance Personal Plan, or it expires (if an expiry date is included), or the person who created it dies.
A decision-maker appointment ends if a person with capacity revokes the appointment of their decision-maker, if all people appointed are unable to act, or if the person who made the appointment dies. The person appointed as decision-maker can also resign from their appointment.
Under certain circumstances, the Northern Territory Civil and Administrative Tribunal (NTCAT) can cancel an advance care directive and/or decision-maker appointment.
Advance care planning in the context of mental health
For people with mental illness who maintain decision-making capacity, advance care planning occurs in the same way as for everyone else. An advance care directive can include preferences relating to mental health treatment and therefore they receive treatments under the same laws.
Advance care directives for people less than 18 years old
Children can do advance care planning and document their preferences, however, there is no advance care directive legislation pertaining to a person less than 18 years of age and they are not legally binding. A person less than 18 years old cannot appoint a decision-maker.
Applicability in other states and territories
In general, a valid NT advance care directive will apply in other states and territories in Australia, although there may be some limitations and additional requirements. It may be recognised under common law.
Similarly, an appointment of a decision-maker will usually apply, but there is variation in the laws within Australia. It is recommended that a person obtain specific advice from the Office of the Public Advocate or equivalent in the relevant state or territory.
If a person is permanently moving state or territory, it is recommended that they update their documentation using the recommended form(s) for their new location.
Advance care directives from other states and territories
In general, a valid advance care directive from another jurisdiction will be recognised in NT as an Advance Personal Plan and used accordingly.
However, a substitute decision-maker appointment will not be recognised.