Health directions in the ACT 

This article states the law of the Australian Capital Territory. The Medical Treatment (Health Directions) Act 2006 (ACT) creates an instrument narrower in what it can do than most advance directives, and wider in how it can be made¹. The prior question is what the direction is trying to achieve, because an ACT health direction can only point one way.

A refusal-only instrument

Section 7(1) provides that 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".

That is the whole of what the instrument does. It cannot consent to treatment, request treatment, or direct that particular treatment be given. A person wanting to record positive wishes must do so by some other means, and a purported direction requiring treatment is not a health direction under this Act.

The comparison is sharp. Victoria's instructional directive binds whether it refuses or consents. Queensland's advance health directive can consent, subject to the s 36(2) preconditions for life-sustaining measures. South Australia, like the ACT, makes only refusals binding — but South Australia's directive can still contain non-binding positive material, whereas the ACT instrument is defined by refusal from the outset.

It need not be in writing

Section 7(2) is the ACT's distinctive provision: "A health direction may be made in writing, orally or in any other way."

No other jurisdiction examined permits an advance refusal to be made so informally. That has obvious practical consequences — a direction may be given at the bedside — and the Act manages the resulting evidentiary risk not by requiring writing but by imposing different witnessing requirements according to form.

Two witnessing regimes

For a written direction, s 8 provides it is not valid unless it is signed by the maker, or by someone else in the maker's presence and at their direction, and the signature is witnessed by two other people.

For a non-written direction, s 9(1) provides it is not valid unless it is witnessed by two health professionals, one of whom is a doctor, present at the same time.

The design is deliberate. Where the instrument lacks the formality of writing, the Act substitutes the presence of clinical witnesses who can attest to what was said and to the maker's condition when saying it. A student should not treat the oral route as a relaxation of safeguards; it is a different safeguard, and arguably a harder one to satisfy at short notice.

Section 9(2) makes the non-written requirements subject to s 6 (other legal rights not affected) and s 11 (people with decision-making capacity to be informed of alternatives).

Who cannot make one

Section 7(3) excludes two categories: a person for whom a guardian is appointed under the Guardianship and Management of Property Act 1991 (ACT), and anyone else who has impaired decision-making capacity.

The first exclusion is categorical rather than functional. Once a guardian has been appointed under the guardianship Act, the person cannot make a health direction — the Act does not ask whether they retain capacity for this particular decision. That is a bright-line rule and a student should apply it as one rather than reasoning from residual capacity.

Revocation, and the professional's duty

Section 10(1) allows a health direction to be revoked by the person who gave it clearly expressing that intention, matching the informality of the making.

Section 12 then places the risk on the clinician. A health professional must not withhold or withdraw medical treatment in accordance with a health direction unless they believe, on reasonable grounds, that the direction complies with the Act and that the person has not revoked it or changed their decision since making it.

Both limbs are required, and the second is forward-looking: the professional must turn their mind to whether anything has changed, not merely whether a valid direction once existed. Where the direction was oral and informally revocable, that is a real enquiry.

Section 13(2) supports it administratively: a health professional or anyone else who becomes aware that a patient in a health care facility has made or revoked a direction must tell the person in charge of the facility, along with the circumstances.

Applying this in a problem question

1. Ask what the direction seeks to do. If it requires or consents to treatment, it is not a health direction under s 7(1).
2. Identify the form — written or not — and apply the correct witnessing rule; they are not interchangeable.
3. For a non-written direction, confirm two health professionals including a doctor were present at the same time.
4. Apply s 7(3) as a bright line where a guardian has been appointed under the guardianship Act.
5. Under s 12, address both limbs: compliance with the Act, and no revocation or change of decision since.
6. Where the direction was oral, give particular attention to the second limb and to s 10(1) revocation.

Self-check

• Have I confirmed the direction refuses or withdraws rather than requiring treatment?
• Have I applied the witnessing rule matching the form of the direction?
• Have I treated s 7(3) as categorical rather than asking about residual capacity?
• Have I addressed the clinician's forward-looking duty under s 12(b)?