Health care decision making in the Northern Territory 

This article states the law of the Northern Territory. The Health Care Decision Making Act 2023 (NT) is where health care decisions go: s 4(1A) of the Guardianship of Adults Act 2016 (NT) expressly excludes them from the guardianship principles¹. The prior question is therefore which Act governs, and once that is settled, who stands highest in the s 13 hierarchy.

A hierarchy, not an appointment

Like New South Wales, the Northern Territory supplies a substitute decision-maker by statutory ranking rather than requiring an appointment. Section 13 lists potential health care decision makers in descending order of priority. The order read includes:

1. a person with health care authority appointed by the adult in an advance personal plan under the Advance Personal Planning Act 2013 (NT), or an equivalent document under the law of a State or another Territory;
2. a guardian of the adult with health care authority appointed under the Guardianship of Adults Act 2016 (NT);
3. 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;
4. a spouse or de facto partner who has a close and continuing relationship with the adult; and
5. a carer of the adult who is not providing that care as a service on a commercial basis.

The person the adult chose ranks first, and a tribunal-appointed guardian second — so planning ahead displaces the default in the ordinary way.

Customary law in the statutory order

Paragraph (c) is what distinguishes this Act. A relative identified by Aboriginal or other customary law or tradition as the appropriate person ranks above a spouse or de facto partner.

No other jurisdiction examined places customary law in the statutory hierarchy at all, let alone above the spouse. New South Wales, by contrast, ranks the spouse second under s 33A(4) of its Guardianship Act 1987 (NSW), after a guardian with the treatment-consent function.

Two features are worth noting for accuracy. The paragraph is not confined to Aboriginal customary law — it reads "Aboriginal or other customary law or tradition". And the test is who that law or tradition considers the appropriate person, so the enquiry is directed to the relevant customary system rather than to a list of relationships fixed by the statute.

The provision also reflects the Territory's demography and the practical reality that the person best placed to decide may not be the person a general-law hierarchy would identify. A student answering an NT problem must work the hierarchy in the Act's order rather than reaching for the spouse first.

Section 14 addresses who is an appropriate health care decision maker, s 15 deals with multiple appointees and s 16 with relinquishing authority, so identifying the highest-ranked person is the start of the enquiry rather than the end.

The decision-making cascade

Section 18 governs how the decision maker exercises authority, and it mirrors the structure in the Advance Personal Planning Act 2013 (NT).

First, subject to ss 20(1) and 41(1)(e), the decision maker must give effect to any advance care statement about the health care decision made by the adult (s 18(2)).

Second, if no advance care statement was made about the decision, the decision maker must exercise authority "in the way the health care decision maker believes on reasonable grounds the adult would in the circumstances" (s 18(3)) — substituted judgement, framed as what the adult would do.

Section 18(4) directs how that belief is formed: the decision maker must take into account the adult's current and previously stated decisions, views, wishes and objections about the matter, and the decision maker's personal knowledge of the adult.

The Territory therefore applies a consistent method across both its planning and its health statutes: advance care statements first, then substituted judgement informed by the decision maker's own knowledge of the person.

Two hierarchies compared

• Northern Territory — appointed person, guardian, relative identified by customary law, spouse or de facto partner, non-commercial carer; then a substituted judgement cascade.
• New South Wales — guardian with the treatment function, spouse in a close and continuing relationship, person who has care of the person, close friend or relative; movement down the list requires writing under s 33A(5).

Both begin with a person chosen or appointed and end with informal relationships, but the middle differs fundamentally, and only the Northern Territory recognises customary authority.

Applying this in a problem question

1. Confirm the decision is a health care decision; if so, this Act governs and the guardianship principles do not.
2. Work the s 13 hierarchy in order and do not skip paragraph (c) to reach the spouse.
3. Where paragraph (c) is in issue, direct the enquiry to who the relevant customary law or tradition considers appropriate.
4. Check ss 14 to 16 on appropriateness, multiple appointees and relinquishment before settling on a decision maker.
5. Apply s 18(2) first: is there an advance care statement about this decision?
6. If not, apply s 18(3) as substituted judgement and use both limbs of s 18(4), including the decision maker's personal knowledge.

Self-check

• Have I confirmed this Act governs rather than the guardianship principles?
• Have I worked the hierarchy in order, including paragraph (c)?
• Have I directed the customary law enquiry to the relevant tradition rather than assuming a relationship?
• Have I applied advance care statements before substituted judgement?