Health Care Decision-Making Act 2023
Background
The Health Care Decision Making Act 2023 commenced on 1 July 2024 and creates a central framework for health care decision-making for an adult with impaired decision-making capacity, whether partially or fully (impaired capacity).
The Act brings together all health care decision-making provisions from the following Acts: the Advance Personal Planning Act 2013, the Guardianship of Adults Act 2016, and the Transplantation and Anatomy Act 1979.
The Act establishes a clear hierarchy of people, which includes family members and other persons who have an existing relationship to the adult, to make health care decisions on the adult’s behalf and will ensure that, wherever possible, health care decisions are made for the adult by a person who is familiar with the adult’s views and wishes.
The benefits of the Act include:
- providing certainty as to who has legal authority to make health care decisions for an adult with impaired decision-making capacity
- providing for persons with a close and continuing relationship to the adult with impaired decision-making capacity to make health care decisions for the adult, including a relevant relative in terms of Aboriginal or other customary law or tradition
- providing a clear pathway for obtaining consent for health care where there is no advance consent decision and no health care decision maker
- common decision-making principles to be applied when making health care decisions for adults with impaired decision-making capacity
- providing certainty to adults that, even if they lose decision-making capacity, health care decisions will be made as they would have made in the circumstances and in accordance with their views and wishes
- safeguarding the rights and interests of adults with impaired decision-making capacity who require health care including a decision-making framework that has the least interference with the right to autonomy of decision and action.
What the changes mean
An adult is presumed to have capacity to make a health care decision unless there is evidence to the contrary. The degree to which an adult has impaired decision-making capacity may vary over time, and for different types of decisions.
However, if an adult loses decision-making capacity and a health care decision is required, then the role of a health care decision maker and any relevant advance care statement comes into effect (unless the adult already has a valid applicable advance consent decision in place which then must be complied with).
The appropriate health care decision maker is an adult identified below in the hierarchy of decision makers as having the highest priority, and who is willing and able to make the decision as follows:
- a person with health care authority appointed in an advance personal plan under the Advance Personal Planning Act 2013
- a guardian with health care authority appointed under the Guardianship of Adults Act 2016
- a relative of the adult who is considered by Aboriginal or other customary law or tradition to be the appropriate person to be a health care decision maker
- a spouse or de facto partner, who has a close and continuing relationship with the adult
- a carer, who is not providing that care as a service on a commercial basis
- a child with a close and continuing relationship with the adult
- a parent with a close and continuing relationship with the adult
- a sibling with a close and continuing relationship with the adult
- a friend with a close and continuing relationship with the adult.
When making a decision, the health care decision maker must give effect to any advance care statement made by the adult.
If no advance care statement was made, the health care decision maker must exercise their authority in the way the health care decision maker believes on reasonable grounds the adult would in the circumstances.
The Public Guardian is the default decision maker, in circumstances where no advance consent decision has been made, there is no identifiable health care decision maker and no application to the NTCAT has been made.
The Act does not apply to children, except in relation to emergencies.
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