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This is a Bill, not an Act. For current law, see the Acts databases.
MEDICAL TREATMENT (HEALTH DIRECTIONS) BILL 2006
2006
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Medical
Treatment (Health Directions) Bill 2006
Contents
Page
2006
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Medical Treatment
(Health Directions) Bill 2006
A Bill for
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.
6 Other
legal rights not affected
(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.
Part
2 Making and revoking health
directions
7 Making
health directions
(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.
8 Requirements
for written health directions
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.
9 Requirements
for non-written health directions
(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).
10 Revocation
of health directions
(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.
Part
3 Health directions and health
professionals
11 People
with decision-making capacity to be informed of alternatives
etc
(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.
12 Health
professionals not to proceed if unsure
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.
13 Notification
of patients making or revoking health 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.
14 Copy
of patients making or revoking health direction
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.
15 Health
professionals not liable for certain decisions
(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.
16 Protection
of health professionals relying on decisions
(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.
Part
4 Health directions and other
statutory instruments
18 Effect
of health directions on later guardian
(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.
19 Effect
of enduring powers of attorney on previous 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.
20 Offence
to dishonestly induce making or revocation of health
direction
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.
22 Regulation-making
power
The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
23 Repeal
of Medical Treatment Act 1994
The Medical Treatment Act 1994 A1994-72 is repealed.
(see s 3)
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.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2006.
2 Notification
Notified under the Legislation Act on 2006.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2006
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