Health Care Decision Making Act 2023 (Northern Territory)

The Health Care Decision Making Act 2023 (NT) establishes who may lawfully make health care decisions for adults whose capacity to decide is impaired, what decisions they may make, how health care may be administered in urgent circumstances, and the criminal and administrative consequences of unlawful behaviour in that area. Mechanically the Act does the following.

Presumes adults have capacity unless evidence to the contrary is shown, s 5. It defines "health care" broadly to include services delivered by registered practitioners, hospitals, mental health services, pharmaceuticals, ambulance, community health, allied services and assessments such as aged care assessments, s 6(1)-(2).
Creates a statutory hierarchy of potential health care decision makers for adults with impaired decision making capacity, listing authorised decision makers in descending priority from appointed health care attorneys in advance personal plans, to guardians appointed under the Guardianship of Adults Act 2016, then to relatives, carers, spouses or de facto partners, children, parents, siblings and friends, s 13. It prescribes rules for selecting the appropriate decision maker, s 14-16, and allows multiple appointees to act by the terms of their appointment, s 15.
Makes advance consent decisions contained in advance personal plans legally effective as if made by a fully informed competent adult, s 19, while giving NTCAT power to disregard such advance consent decisions in defined circumstances, s 41(1)(e) and (2).
Imposes decision making principles on health care decision makers, including that they must, where practicable, give effect to an adult's advance care statement, or otherwise act in the way they reasonably believe the adult would act; only if they cannot form such a belief must they act in the adult's "best interests" subject to specified considerations and a least-restrictive requirement, s 18(2)-(10). Section 18(5) expressly requires following a reasonable belief as to the adult's wishes even if that may not be in the decision maker's assessment of best interests, with limited exceptions in s 20.

NORTHERN TERRITORY OF AUSTRALIA HEALTH CARE DECISION MAKING ACT 2023 As in force at 1 August 2025 Table of provisions Part 1 Preliminary matters 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Purposes of Act ............................................................................... 1 4 Definitions ........................................................................................ 2 5 Presumption of capacity to make health care decisions .................. 3 6 Meaning of health care .................................................................... 3 7 Meaning of health care decision ...................................................... 4 8 Meaning of impaired decision making capacity ............................... 4 9 Meaning of willing and able ............................................................. 6 10 Application of Criminal Code ........................................................... 6 Part 2 Health care decision makers 11 Authority of health care decision maker........................................... 6 12 Scope of health care decisions ........................................................ 7 13 Hierarchy of health care decision makers ........................................ 8 14 Appropriate health care decision maker .......................................... 9 15 Multiple appointees.......................................................................... 9 16 Relinquishing authority .................................................................. 10 17 Support to adult in making health care decision ............................ 10 18 Decision making principles ............................................................ 10 19 Advance consent decision ............................................................. 12 20 Exemptions .................................................................................... 12 21 Benefit to third party ...................................................................... 13 22 Role of Public Guardian ................................................................. 14 Part 3 Administering health care 23 Initial responsibilities of health care provider ................................. 14 24 Determination of capacity .............................................................. 15 25 Routine health care ....................................................................... 16 26 Palliative care ................................................................................ 16 27 Relief from pain and distress ......................................................... 17 28 Cosmetic surgery and other treatments ......................................... 17 29 Role of health care decision makers regarding "restrictive practices" ....................................................................................... 17 30 Restricted health care .................................................................... 20 31 Reliance on health care decision makers and others .................... 21

Health Care Decision Making Act 2023 ii 32 Reliance on consent of adult with unknown impaired decision making capacity ............................................................................. 22 33 Other responsibilities of health care provider................................. 22 34 Unnecessary health care ............................................................... 22 35 Deemed unprofessional conduct ................................................... 23 36 Other laws allowing health care without consent not affected ....... 23 37 Other rights preserved ................................................................... 23 Part 4 Urgent health care 38 Application ..................................................................................... 23 39 Urgent health care without consent ............................................... 24 Part 5 NTCAT 40 Application to NTCAT .................................................................... 24 41 Orders by NTCAT .......................................................................... 25 42 Parties ........................................................................................... 26 43 Closed proceedings ....................................................................... 26 44 Oral reasons and findings of fact ................................................... 27 45 No internal review .......................................................................... 27 Part 6 Offences 46 Disclosure of identity information ................................................... 27 47 False representation ...................................................................... 28 48 Misleading information ................................................................... 29 49 Improper exercise of authority ....................................................... 30 50 Acting without authority ................................................................. 31 51 Contravention of decision making principles.................................. 31 52 Inducing contravention of decision making principles .................... 32 53 Limitation period for prosecutions .................................................. 33 Part 7 Administrative and other matters 54 Senior Practitioner directives and approvals.................................. 33 54A Delegation ..................................................................................... 34 55 Public Guardian guidelines ............................................................ 34 56 Report to Public Guardian ............................................................. 34 57 Liability of health care providers .................................................... 35 58 Regulations.................................................................................... 35 Part 8 Repeal 59 Act repealed .................................................................................. 35 ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 1 August 2025

HEALTH CARE DECISION MAKING ACT 2023 An Act to govern the making of health care decisions for adults with impaired decision making capacity, for the provision of urgent health care without consent to both adults and children and for related purposes Part 1 Preliminary matters 1 Short title This Act may be cited as the Health Care Decision Making Act 2023. 2 Commencement (1) Subject to subsection (2), this Act commences on the day fixed by the Administrator by Gazette notice. (2) If a provision of this Act does not commence before 18 May 2025, it commences on that day. 3 Purposes of Act The purposes of this Act are the following: (a) to provide authority to a hierarchy of persons to make decisions regarding the health care of an adult with impaired decision making capacity; (b) to include, within that hierarchy, persons with authority under the Advance Personal Planning Act 2013 and the Guardianship of Adults Act 2016; (c) to establish the principles and rules for making health care decisions, while protecting an adult's freedom of decision and action;

Part 1 Preliminary matters Health Care Decision Making Act 2023 2 (d) to regulate the administration of certain types of health care and prohibit or restrict the making of certain health care decisions, in relation to an adult with impaired decision making capacity; (e) to provide for the administration of health care without consent to both adults and children in urgent circumstances. 4 Definitions In this Act: advance care statement, see section 3 of the Advance Personal Planning Act 2013. advance consent decision means a health care decision set out in an advance personal plan under the Advance Personal Planning Act 2013. health care, see section 6. health care decision, see section 7. health care decision maker means a person determined under Part 2 with authority under this Act to make a health care decision. health care provider means an individual who provides health care. impaired decision making capacity, see section 8. Public Guardian means the Public Guardian established under section 60 of the Guardianship of Adults Act 2016. Senior Practitioner means the person appointed under section 9 of the National Disability Insurance Scheme (Authorisations) Act 2019. willing and able, see section 9. Note for section 4 The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

Part 1 Preliminary matters Health Care Decision Making Act 2023 3 5 Presumption of capacity to make health care decisions An adult is presumed to have capacity to make a health care decision unless there is evidence to the contrary. Note for section 5 In the absence of other evidence, an adult who merely appears to have impaired decision making capacity is still presumed not to have impaired decision making capacity. A guardianship order could be evidence to the contrary. 6 Meaning of health care (1) Health care means any kind of health care, including the following services or anything provided as part of any of the following services: (a) services provided by a health practitioner under the Health Practitioner Regulation National Law; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, massage therapists, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services; (k) the removal of tissue from an adult's body in accordance with Part 2 of the Transplantation and Anatomy Act 1979. (2) An assessment conducted by a health care provider for the purpose of assessing current or future health care requirements is taken to be a form of health care. Example for subsection (2) An aged care assessment made in relation to care under the Aged Care Act 1997 (Cth).

Part 1 Preliminary matters Health Care Decision Making Act 2023 4 7 Meaning of health care decision (1) A health care decision is a decision whether to commence, continue, withdraw or withhold health care for an adult. (2) A health care decision to commence, continue, withdraw or withhold health care made by a health care decision maker is taken to be consent on behalf of the adult to the commencement, continuation, withdrawal or withholding of that health care. (3) A health care decision to not commence, not continue, not withdraw or not withhold health care made by a health care decision maker is taken to be refusal to consent on behalf of the adult to the commencement, continuation, withdrawal or withholding of that health care. 8 Meaning of impaired decision making capacity (1) An adult has impaired decision making capacity in relation to a health care decision if the adult's capacity to make the health care decision is impaired. (2) An impairment in any of the following is relevant in determining whether an adult's capacity to make the health care decision is impaired: (a) understanding and retaining information relevant to the health care decision; (b) weighing information relevant to the health care decision in order to make the health care decision; (c) communicating the health care decision in some way; (d) understanding the effect of the health care decision. (3) For subsection (2)(a), an adult is taken to understand information relevant to a health care decision if the adult understands an explanation of the information given to the adult in a way that is appropriate to the adult's circumstances, whether by using modified language, visual aids or other means. (4) For subsection (2)(c), an adult is taken to communicate the health care decision if the adult communicates the decision in a way that is appropriate to the adult's circumstances, whether by using modified language, visual aids or other means. (5) An adult may have impaired decision making capacity in relation to some matters and not others.

Part 1 Preliminary matters Health Care Decision Making Act 2023 5 (6) The degree to which an adult has impaired decision making capacity may vary over time. (7) The cause of the impairment of the decision making capacity is immaterial. (8) An adult does not have impaired decision making capacity merely because the adult: (a) has a disability, illness or other medical condition, whether physical or mental; or (b) requires the use of practicable and appropriate support, including additional time for explanation, modified language, visual or technological aids or other means of communication; or (c) engages in unconventional behaviour or another form of personal expression; or (d) chooses a living environment or lifestyle with which other people do not agree; or (e) makes decisions with which other people do not agree; or (f) does not have a particular level of fluency in English; or (g) does not have a particular level of literacy or education; or (h) engages in particular cultural or religious practices; or (i) does or does not express a particular religious, political or moral opinion; or (j) is of a particular sexual orientation or gender identity or expresses particular sexual preferences; or (k) takes or took, or is or was dependent on, alcohol or drugs, unless the alcohol or drugs are causing actual impairment in relation to the health care decision; or (l) engages or engaged in illegal or immoral conduct. Examples for subsection (8)(b) 1 Using information or formats tailored to the particular needs of the adult. 2 Communicating or assisting a person to communicate the adult's decision. 3 Giving a person additional time and discussing the matter with the adult. 4 Using technology that alleviates the effects of an adult's disability.

Part 2 Health care decision makers Health Care Decision Making Act 2023 6 9 Meaning of willing and able A person is willing and able to make a health care decision for an adult with impaired decision making capacity if the person: (a) has capacity to make the decision; and (b) is reasonably available; and (c) is willing to make the decision; and (d) understands the obligation to act in accordance with the decision making principles; and (e) has the information reasonably needed to make a balanced decision; and (f) has adequate time to consider that information; and (g) understands the effect of making the decision; and (h) is able to make the decision voluntarily and without undue influence from any person. Example for paragraph (b) The person is available by telephone or video call. 10 Application of Criminal Code Part IIAA of the Criminal Code applies to an offence against this Act. Note for section 10 Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. Part 2 Health care decision makers 11 Authority of health care decision maker (1) A health care decision maker has authority to make a health care decision for an adult if: (a) the adult has impaired decision making capacity in relation to the health care decision; and (b) the adult has not made an advance consent decision in an advance personal plan in relation to the health care decision.

Part 2 Health care decision makers Health Care Decision Making Act 2023 7 (2) A health care decision maker has no authority under this Act regarding the following: (a) any treatment or care ordered by the Local Court under the Disability Services Act 1993; (b) any treatment under the Mental Health and Related Services Act 1998: (i) for complex cognitive impairment or mental illness; or (ii) of a mentally disturbed person; (c) any neurosurgery for mental illness. (3) In this section: complex cognitive impairment, see section 6A of the Mental Health and Related Services Act 1998. mental illness, see section 6 of the Mental Health and Related Services Act 1998. mentally disturbed, see section 4 of the Mental Health and Related Services Act 1998. 12 Scope of health care decisions (1) A health care decision may be made in relation to health care to be provided: (a) in specified circumstances; or (b) as a course of health care to be provided over a period of time. (2) Subsection (1) does not authorise a health care decision maker to avoid responsibility by delegating a health care decision to someone else. Example for subsection (2) A health care decision maker cannot decide to have someone else make the health care decision in the future, but would allow consent to be given to a surgeon to make immediately required decisions during surgery.

Part 2 Health care decision makers Health Care Decision Making Act 2023 8 13 Hierarchy of health care decision makers The following persons, listed in descending order of priority, are the potential health care decision makers for an adult with impaired decision making capacity: (a) a person with health care authority appointed by the adult in an advance personal plan under the Advance Personal Planning Act 2013 or an equivalent document under a law of a State or another Territory; (b) a guardian of the adult with health care authority appointed under the Guardianship of Adults Act 2016; (c) 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; (d) a spouse or de facto partner of the adult who has a close and continuing relationship with the adult; (e) a person who is the carer of the adult and not providing that care as a service on a commercial basis; (f) a child of the adult who has a close and continuing relationship with the adult; (g) a parent of the adult who has a close and continuing relationship with the adult; (h) a sibling of the adult who has a close and continuing relationship with the adult; (i) a friend of the adult who has a close and continuing relationship with the adult. Notes for section 13 1 The persons specified in paragraphs (a) and (b) are appointed under other legislation and accordingly have statutory functions. The other persons in the section are persons with familial or other connections to the adult. 2 A friend or relative is not precluded from being a health care decision maker because they are receiving a carer payment from the Commonwealth to be a carer of the adult. 3 The Public Guardian may make guidelines on applying and interpreting this section. See section 55(a).

Part 2 Health care decision makers Health Care Decision Making Act 2023 9 14 Appropriate health care decision maker (1) If needed to make a health care decision for an adult with impaired decision making capacity, the appropriate health care decision maker is the person specified in section 13 who meets the following criteria: (a) the person has the highest priority under that section; (b) the person is an adult; (c) the person is willing and able to make the decision. (2) If a guardian with health care authority is appointed for the adult under the Guardianship of Adults Act 2016 after another person had authority as the adult's health care decision maker, the guardian becomes the health care decision maker instead of the other person. (3) If a person specified in section 13(a) or (b) exists but is not willing and able to make a health care decision, that person must apply to NTCAT for an order under section 41(1)(c), unless it is not reasonably practicable to do so. (4) The application under subsection (3) must be made as soon as practicable. (5) The Public Guardian is taken to be the health care decision maker for an adult if an application is required but not made in accordance with subsections (3) and (4). 15 Multiple appointees (1) This section applies if 2 or more persons referred to in section 13(a) or (b) are appointed. (2) All of the persons appointed are considered to be the health care decision maker and must exercise their authority in accordance with their appointment. Note for subsection (2) They may be appointed to act jointly, severally or jointly and severally. (3) If a person appointed is not willing and able to make the decision, the remaining person or persons have authority to make the health care decision, unless the persons are jointly appointed. (4) If 2 or more persons who are severally appointed agree on the health care decision, any one of them may make the decision.

Part 2 Health care decision makers Health Care Decision Making Act 2023 10 (5) If 2 or more persons who are jointly appointed do not agree on the health care decision, none of them may make the decision. 16 Relinquishing authority (1) A health care decision maker, other than one specified in section 13(a) or (b), may relinquish authority under this Act at any time for any reason. (2) If a health care decision maker relinquishes authority, the next person who meets the criteria of section 14(1) is the appropriate health care decision maker. 17 Support to adult in making health care decision (1) Before exercising authority under this Act, a health care decision maker must make a reasonable effort to use any practicable support appropriate to the circumstances to assist the adult in making the health care decision. (2) A health care decision maker may also consult other persons who may have relevant information before exercising authority under this Act. 18 Decision making principles (1) This section governs the exercise of authority of a health care decision maker to make a health care decision in relation to an adult with impaired decision making authority. (2) Subject to sections 20(1) and 41(1)(e), the health care decision maker must give effect to any advance care statement, about the health care decision, made by the adult. (3) If no advance care statement was made about the health care decision, the health care decision maker must exercise authority under this Act in the way the health care decision maker believes on reasonable grounds the adult would in the circumstances. (4) In determining what the adult would do in the circumstances, the health care decision maker must take into account: (a) the adult's current and previously stated decisions, views, wishes and objections about the matter; and

Part 2 Health care decision makers Health Care Decision Making Act 2023 11 (b) the health care decision maker's personal knowledge of the adult. Note for subsection (4)(a) This would include the advance personal plan for a person with health care authority appointed under the Advance Personal Planning Act 2013. (5) If a health care decision maker forms a belief on reasonable grounds regarding what the adult would do in the circumstances, the health care decision maker must exercise authority in that way, even if doing so may not be in the adult's best interests. Note for subsection (5) Certain decisions, practices and health care are restricted or limited under sections 29 and 30. (6) Subsection (5) does not require giving the adult addictive substances, without therapeutic benefit, that the adult would use if the adult had legal capacity. (7) If a health care decision maker is unable to form a belief on reasonable grounds regarding what the adult would do in the circumstances, the health care decision maker must exercise authority in the way that the decision maker believes on reasonable grounds is in the best interests of the adult. (8) For subsection (7), in determining what is in the best interests of the adult, the health care decision maker must: (a) take into account all relevant considerations; and (b) assess those considerations by giving each of them the weight the health care decision maker believes on reasonable grounds is appropriate in the circumstances. (9) Without limiting subsection (8)(a), relevant considerations regarding the adult include the following: (a) protecting the adult from harm, neglect, abuse and exploitation; (b) providing the adult with appropriate care; (c) promoting the adult's happiness, enjoyment of life and wellbeing; (d) protecting the adult's freedom of decision and action; (e) enabling the adult to be as independent as practicable;

Part 2 Health care decision makers Health Care Decision Making Act 2023 12 (f) enabling the adult to achieve the adult's maximum physical, social, emotional and intellectual potential; (g) enabling the adult to live in the general community and take part in community activities; (h) maintaining the adult's right to be treated with dignity and respect; (i) enabling the adult to maintain the adult's preferred living environment and lifestyle; (j) maintaining or creating a positive support network for the adult; (k) protecting the adult's property and financial resources from loss, damage and misuse; (l) protecting the adult's right to keep the adult's information confidential. (10) In determining what is appropriate in the circumstances under subsection (8)(b), the health care decision maker must exercise authority in a way that: (a) is the least restrictive of the adult's freedom of decision and action as is practicable; and (b) provides the adult with as much support as is practicable to make the adult's own health care decisions. 19 Advance consent decision Subject to section 41, an advance consent decision made by an adult has effect for all purposes as if it is a health care decision made by a fully informed adult with capacity to make the health care decision. 20 Exemptions (1) A health care decision maker is not required to comply with section 18(2) if: (a) the adult made a subsequent written declaration stating that the adult does not want to give effect to the advance care statement, at a time when the adult did not have impaired decision making capacity to make a health care decision; or (b) there is no reasonable possibility the adult would have intended the statement to apply in the circumstances.

Part 2 Health care decision makers Health Care Decision Making Act 2023 13 (2) A health care decision maker is not required to comply with section 18(2) or (3) if compliance would: (a) be impracticable; or (b) be unlawful; or (c) impose a burden on another person that is so unreasonably onerous that it is justifiable to override the adult's wishes; or (d) be so unreasonable that it is justifiable to override the adult's wishes. (3) If a health care decision maker relies on subsection (1) or (2), the health care decision maker must keep a written record of the reasons for not complying with section 18(2) or (3), as the case may be. 21 Benefit to third party A health care decision maker may exercise authority under this Act in a way that benefits a person other than the adult with impaired decision making capacity if: (a) the benefit to the other person is of a kind that the adult with impaired decision making capacity: (i) provided to the other person before their decision making capacity became impaired; or (ii) might reasonably be expected to provide to the other person but for the impaired decision making capacity; and (b) providing the benefit to the other person: (i) would be reasonable in the circumstances; and (ii) would not have a significantly adverse effect on the best interests of the adult with impaired decision making capacity. Example for section 21 A health care decision maker might consent to the adult with impaired decision making capacity donating bone marrow to treat a child of the adult with leukaemia, even though doing so may involve some risk to the adult.

Part 3 Administering health care Health Care Decision Making Act 2023 14 22 Role of Public Guardian (1) The Public Guardian has authority to make a health care decision for an adult if: (a) the adult has impaired decision making capacity in relation to the health care decision; and (b) the adult has not made an advance consent decision in an advance personal plan in relation to the health care decision; and (c) no health care decision maker meets the criteria of section 14(1); and (d) no application is made to NTCAT for an order under section 41(1)(c). (2) In addition to subsection (1), the Public Guardian has authority to make a health care decision for an adult if: (a) appointed as the adult's guardian with health care authority under the Guardianship of Adults Act 2016; or (b) appointed as a person with health care authority for the adult under the Advance Personal Planning Act 2013; or (c) ordered to be the health care decision maker by NTCAT under section 41(1)(c)(i). (3) The following provisions of this Act apply to the making of a health care decision by the Public Guardian under subsections (1) and (2): (a) section 15; (b) sections 17 to 21; (c) sections 27 to 30. Part 3 Administering health care 23 Initial responsibilities of health care provider (1) Before administering health care to an adult with impaired decision making capacity, a health care provider must make reasonable efforts in the circumstances to ascertain if the adult made an advance consent decision in relation to the health care.

Part 3 Administering health care Health Care Decision Making Act 2023 15 (2) Subject to sections 33(2) and 41(2), a health care provider has authority to administer health care to an adult with impaired decision making capacity in accordance with the adult's advance consent decision in relation to the health care, without the consent of a health care decision maker. Note for subsection (2) Section 19 provides for the effect of an advance care consent decision. (3) If after reasonable efforts the health care provider is not aware of an advance consent decision, the health care provider must make reasonable efforts in the circumstances to contact the appropriate health care decision maker for the adult with impaired decision making capacity. (4) A health care provider must keep a written record of the provider's efforts to comply with subsections (1) and (3). (5) For this section, a health care provider must make reasonable efforts to follow any guidelines issued by the Public Guardian under section 55(b). Note for section 23 These responsibilities are subject to Part 4 regarding administration of health care in urgent circumstances. 24 Determination of capacity (1) Before a health care decision maker makes a health care decision for an adult with impaired decision making capacity, the health care provider who would administer the health care must first determine: (a) the extent of the adult's impairment in relation to the decision; and (b) whether the impairment is likely to be temporary or permanent; and (c) whether the health care decision maker needs to exercise authority to make the decision in the circumstances. (2) The determination under subsection (1) must be done in collaboration with the health care decision maker if reasonably practicable. (3) If the health care provider determines the adult's impairment to be temporary, any health care provided to the adult must be limited to what is necessary during the expected period of impairment.

Part 3 Administering health care Health Care Decision Making Act 2023 16 (4) For this section, a health care provider must make reasonable efforts to follow any guidelines issued by the Public Guardian under section 55(c). 25 Routine health care (1) A health care provider may administer routine health care to an adult with impaired decision making capacity without the consent of a health care decision maker. (2) Subsection (1) authorises administering routine personal hygiene and grooming. (3) Subsections (1) and (2) do not authorise a health care provider to administer any health care that: (a) is objected to by the adult; or (b) consists of an ongoing course of treatment; or (c) causes a significant degree of intrusion into the body of the adult; or (d) creates a significant risk of harm to the adult; or (e) causes significant side-effects to the adult; or (f) causes significant pain or distress to the adult. (4) For this section, a health care provider must make reasonable efforts to follow any guidelines issued by the Public Guardian under section 55(d). 26 Palliative care (1) A health care provider may administer palliative care to an adult with impaired decision making capacity without the consent of, and despite an objection from, a health care decision maker, if the adult: (a) has an active, progressive and advanced disease; and (b) has little or no prospect of cure and is expected to die. (2) The health care provider must consult with the health care decision maker before administering palliative care to an adult with impaired decision making capacity.

Part 3 Administering health care Health Care Decision Making Act 2023 17 (3) In addition to the duty in section 23, a health care provider must have regard to any preferences and values of the adult with impaired decision making capacity known to the health care provider when making a decision to administer palliative care under subsection (1). (4) In this section: palliative care means reasonable treatment for the relief of pain, suffering and distress provided to an adult: (a) with an active, progressive and advanced disease; and (b) who has little or no prospect of cure; and (c) who is expected to die; and (d) for whom the primary goal is to optimise the quality of life. 27 Relief from pain and distress (1) A health care decision maker must exercise their authority to ensure that an adult with impaired decision making capacity does not needlessly suffer significant pain or distress. (2) A health care provider may administer health care that provides relief to an adult with impaired decision making capacity from significant pain or distress without the consent of, and despite an objection from, a health care decision maker. 28 Cosmetic surgery and other treatments A health care decision maker has authority to consent to the administration of cosmetic surgery, botulinum toxin injections or body piercing to an adult with impaired decision making capacity if: (a) the procedure is justified as health care; or (b) both of the following apply: (i) the adult gave explicit directions to have the procedure before their decision making capacity became impaired; (ii) the procedure carries a low risk of harm to the adult. 29 Role of health care decision makers regarding "restrictive practices" (1) A health care decision maker has no authority to consent to any practice or health care that has the effect of restricting the rights or freedom of movement of an adult with impaired decision making

Part 3 Administering health care Health Care Decision Making Act 2023 18 capacity in relation to that practice or health care, including, but not limited to, the following: (a) seclusion of an adult in a room or place where voluntary exit is prevented or where it is implied that voluntary exit is not permitted; (b) chemical restraint of an adult for the primary purpose of influencing the adult's behaviour; (c) mechanical restraint of an adult to prevent, restrict or subdue the adult's movement for the primary purpose of influencing the adult's behaviour; (d) physical restraint of an adult by physical force to prevent, restrict or subdue movement of the adult's body, or part of their body, for the primary purpose of influencing their behaviour; (e) environmental restraint of an adult preventing free access to their preferred activities or to all parts of their environment, including their personal belongings or other items. (2) Despite subsection (1), a health care decision maker has authority to consent to the following practices or health care being administered by a health care provider: (a) the use of drugs or chemicals if: (i) they are used for the treatment of, or to enable the treatment of, a diagnosed illness, injury or other organic malfunction; and (ii) they are the least restrictive method of treatment in the circumstances; (b) the use of a hands-on technique to restrain an adult if: (i) used to prevent potential injury or harm to the adult or others; and (ii) used in a manner consistent with reasonable care of the adult; and (iii) it is the least restrictive method of prevention in the circumstances;

Part 3 Administering health care Health Care Decision Making Act 2023 19 (c) seclusion as mentioned in subsection (1)(a) if: (i) it is reasonably required to assist in the management of the adult; and (ii) used in a manner consistent with reasonable care of the adult; and (iii) it is the least restrictive method of prevention in the circumstances; (d) a practice expressly approved by, or allowed by a directive issued by, the Senior Practitioner under section 54; (e) a practice or health care expressly approved in relation to a particular adult by: (i) if the adult is receiving health care at a public hospital – the medical practitioner who is director of medical services for the hospital; or (ii) if the adult is receiving health care at a private hospital – the medical practitioner who is the manager of the hospital under the Private Hospitals Act 1981; (f) a practice or health care: (i) otherwise permitted by section 25; or (ii) authorised or required under another law of the Territory; or (iii) prescribed by regulation. (3) An approval of a particular practice or health care in relation to a particular adult under subsection (2)(e): (a) has effect for a period of no longer than 72 hours, as specified in the approval; and (b) cannot be reapproved. (4) In administering any practice or health care mentioned in this section, a health care provider must make reasonable efforts to follow any directives issued by the Senior Practitioner under section 54. Note for section 29 An advance consent decision may be made about a matter to which this section applies.

Part 3 Administering health care Health Care Decision Making Act 2023 20 30 Restricted health care (1) Subject to subsections (2) and (3), a health care decision maker has no authority in relation to the following: (a) sterilisation; (b) termination of a pregnancy; (c) removal of non-regenerative tissue, as defined in section 4 of the Transplantation and Anatomy Act 1979, for transplantation into another person; (d) special medical research or experimental health care that: (i) relates to a condition the adult has or to which the adult has a significant risk of being exposed; or (ii) is intended to gain knowledge for use in the diagnosis, maintenance or treatment of a condition the adult has or had; (e) health care that is not yet accepted as evidence-based or best practice by a substantial number of health care providers specialising in the relevant area of health care; (f) electroconvulsive therapy; (g) any treatment that involves the use of an aversive stimulus, whether mechanical, chemical, physical or otherwise; (h) any procedure prescribed by regulation. (2) A health care decision maker has authority to consent to the administration of a procedure referred to in subsection (1)(a) or (b) to an adult if: (a) the primary reason for the procedure is to treat an illness, injury or other organic malfunction; and (b) serious or irreversible damage to the adult's health is likely unless the procedure is performed.

Part 3 Administering health care Health Care Decision Making Act 2023 21 (3) Subsection (1)(d) does not prohibit research (including psychological research), a clinical trial or the collection of information: (a) that is: (i) approved by a Human Research Ethics Committee registered with the National Health and Medical Research Council; and (ii) conducted in accordance with any human research guidelines made under section 10 of the National Health and Medical Research Council Act 1992 (Cth); or (b) that is prescribed by regulation. Note for section 30 An advance consent decision may be made about a matter to which this section applies. 31 Reliance on health care decision makers and others (1) A health care provider who administers health care to an adult is taken, for all purposes, to have the consent of the adult in relation to that health care, if the health care provider: (a) believes on reasonable grounds the adult has impaired decision making capacity in relation to making a health care decision; and (b) relies on the consent to the health care or a health care decision given by: (i) the adult in an advance consent decision; or (ii) another person whom the health care provider believes on reasonable grounds to be the appropriate health care decision maker for the adult; or (iii) the Public Guardian under section 22; or (iv) NTCAT under section 41(1)(c) or (d). (2) For subsection (1)(b)(i), the health care provider may rely on an advance consent decision that NTCAT previously ordered to be disregarded if the health care provider does not know, and could not reasonably be expected to know, about the order. (3) Subsection (1) has effect even if administering the health care will hasten the death of the adult.

Part 3 Administering health care Health Care Decision Making Act 2023 22 32 Reliance on consent of adult with unknown impaired decision making capacity (1) A health care provider who administers health care to an adult is taken, for all purposes, to have the consent of the adult in relation to that health care if: (a) the health care provider relies in good faith on consent purportedly given by the adult; and (b) the adult has impaired decision making capacity in relation to making a decision about the health care; and (c) the health care provider does not know, and could not reasonably be expected to know, that the adult has impaired decision making capacity in relation to a decision about the health care. (2) Subsection (1) has effect even if administering the health care will hasten the death of the adult. 33 Other responsibilities of health care provider (1) Nothing in this Act affects any other duty of care owed by a health care provider to a person. (2) Nothing in this Act relieves a health care provider from the requirement to comply with any of the following in administering health care under this Act: (a) another law of the Territory; (b) any requirements applicable to the health care provider by any relevant professional organisation; (c) any operational requirements for the administration of the health care. 34 Unnecessary health care Nothing in this Act requires a health care provider to administer health care that is extraordinary, excessively burdensome, intrusive or futile.

Part 4 Urgent health care Health Care Decision Making Act 2023 23 35 Deemed unprofessional conduct A health care provider's conduct constitutes unprofessional conduct for the Health Practitioner Regulation National Law and any other law prescribed by regulation if: (a) the health care provider believes on reasonable grounds that an adult has impaired decision making capacity to make a health care decision; and (b) administering the health care requires a health care decision made in accordance with this Act; and (c) the health care provider administers the health care to the adult without that health care decision. 36 Other laws allowing health care without consent not affected This Act does not affect the operation of any other law of the Territory that allows a person to administer health care to another person without that other person's consent. Example for section 36 Part 3 of the Mental Health and Related Services Act 1998. 37 Other rights preserved (1) This Act does not affect any right of an adult with capacity to make a health care decision. (2) This Act does not affect the common law relating to the recognition of an adult's instructions about their health care that are given other than in an advance personal plan. Part 4 Urgent health care 38 Application (1) This Part applies in relation to the administration of health care to both adults and children. (2) Parts 2 and 3 are subject to this Part and if a provision of those Parts is inconsistent with this Part, this Part prevails to the extent of the inconsistency.

Part 5 NTCAT Health Care Decision Making Act 2023 24 39 Urgent health care without consent (1) A health care provider may administer health care to an individual without the consent of the individual or any other person if the health care provider believes on reasonable grounds that: (a) the health care is necessary, as a matter of urgency to: (i) save the individual's life; or (ii) prevent serious damage to the individual's health; or (iii) prevent the individual suffering, or continuing to suffer, from significant pain or distress; and (b) the individual has impaired decision making capacity in relation to the health care; and (c) it is not practicable to delay the health care to obtain or attempt to obtain consent from: (i) if the impaired decision making capacity is temporary – the individual; or (ii) a health care decision maker; and (d) the health care is limited to what is necessary, as a matter of urgency. (2) Subsection (1) does not authorise a health care provider to administer health care to an individual if the health care provider is aware the individual has refused that health care by way of: (a) an advance consent decision; or (b) a previously informed refusal when the individual did not have impaired decision making capacity. Part 5 NTCAT 40 Application to NTCAT (1) An application may be made to NTCAT for an order under section 41 by the following persons: (a) a health care provider who has the care of, or is administering health care to, an adult; (b) the health care decision maker for an adult;

Part 5 NTCAT Health Care Decision Making Act 2023 25 (c) the Public Guardian; (d) any other person who NTCAT is satisfied has a special interest in the affairs of the adult. (2) Subject to subsection (3), an application must be commenced as soon as practicable. (3) An application on the grounds that a health care decision maker made or is making a health care decision contrary to the wishes of an adult must be filed without delay after the applicant forms a reasonable belief of those grounds. Note for subsection (3) The application should be filed within a day of forming the belief if possible. 41 Orders by NTCAT (1) NTCAT may, by order, do one or more of the following: (a) limit or vary a health care decision or the authority of a health care decision maker to make a health care decision under this Act; (b) decide who is the appropriate health care decision maker for an adult with impaired decision making capacity; (c) if a person specified in section 13(a) or (b) is not willing or able to make a health care decision: (i) determine who should be the health care decision maker; or (ii) make the health care decision itself; (d) approve or allow any practice or health care for which a health care decision maker has no authority under section 29 or 30; (e) subject to subsection (2), disregard an advance consent decision; (f) provide for any related matter it considers necessary. (2) NTCAT may order that an advance consent decision be disregarded only if satisfied that: (a) there is no reasonable possibility that the adult would have intended the advance consent decision to apply in the circumstances; or

Part 5 NTCAT Health Care Decision Making Act 2023 26 (b) the advance consent decision was not an informed decision; or (c) giving effect to the advance consent decision: (i) would cause the adult unacceptable pain and suffering; or (ii) would otherwise be so wholly unreasonable that it is justifiable to override the adult's wishes. (3) NTCAT may make an order under subsection (1) on application or on its own initiative. (4) The authority to make orders under this section comes within NTCAT's original jurisdiction. (5) NTCAT must act in accordance with the decision making principles in section 18 when making a health care decision. 42 Parties (1) The following persons are parties to any proceeding before NTCAT under this Act: (a) the adult to whom the health care is to be administered or for whom the health care decision is to be made; (b) any person who commenced the proceeding; (c) any health care decision maker who is the subject of the proceeding; (d) any person whose selection as a health care decision maker is the subject of the proceeding. (2) The Public Guardian may intervene in any proceeding before NTCAT under this Act in which it is not a party. 43 Closed proceedings (1) Despite section 60 of the Northern Territory Civil and Administrative Tribunal Act 2014 but subject to subsection (2): (a) a proceeding under this Part is not open to the public and must be heard in private; and (b) information that identifies, or is likely to lead to the identification of, an adult who is the subject of the proceeding must not be published.

Part 6 Offences Health Care Decision Making Act 2023 27 (2) If satisfied that it is in the public interest, NTCAT may, by order: (a) open to the public a proceeding under this Part; and (b) authorise publication of information prohibited under subsection (1)(b). 44 Oral reasons and findings of fact (1) Despite section 105(2) of the Northern Territory Civil and Administrative Tribunal Act 2014, NTCAT may give the reasons for a decision and any relevant findings of fact in any proceeding orally to the parties to the proceeding. (2) If requested by a party, NTCAT must give the reasons in writing to the parties within 28 days after the day the request is made. (3) A request referred to in subsection (2) must be made within 28 days after the day the reasons are given orally. (4) The President of NTCAT may extend the time limits in subsections (2) and (3). 45 No internal review Section 140(1) of the Northern Territory Civil and Administrative Tribunal Act 2014 does not apply in relation to a decision of NTCAT under this Act. Part 6 Offences 46 Disclosure of identity information A person commits an offence if: (a) the person intentionally engages in conduct; and (b) the conduct results in the disclosure of information that identifies, or is likely to lead to the identification of, an adult who is the subject of a proceeding under Part 5; and (c) the disclosure is not: (i) authorised by an order of NTCAT; or (ii) for a purpose connected with the administration of this Act, including a legal proceeding arising out of the operation of this Act; or

Part 6 Offences Health Care Decision Making Act 2023 28 (iii) to a person who is otherwise entitled to the information; and (d) the person is reckless in relation to the result and circumstances referred to in paragraph (b) and (c). Maximum penalty: 200 penalty units or imprisonment for 2 years. Note for section 46 In addition to the circumstances specified in this section, a person who discloses information specified in this section will not be criminally responsible for an offence if the disclosure is justified or excused by or under a law (see section 43BE of the Criminal Code). 47 False representation (1) A person commits an offence if: (a) the person intentionally represents, by words or conduct, that the person or another person: (i) is a health care decision maker; or (ii) is a health care decision maker with authority for a particular matter; and (b) the representation is false and the person has knowledge of that circumstance. Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) A person commits an offence if: (a) the person represents, by words or conduct, that the person or another person: (i) is a health care decision maker; or (ii) is a health care decision maker with authority for a particular matter; and (b) the representation is false and the person has knowledge of that circumstance; and (c) the person engages in the conduct mentioned in paragraph (a) with the intention of obtaining a benefit for the person or another person. Maximum penalty: Imprisonment for 7 years.

Part 6 Offences Health Care Decision Making Act 2023 29 (3) Subsection (2)(c) is the fault element for the conduct in subsection (2)(a). 48 Misleading information (1) A person commits an offence if: (a) the person intentionally gives information to another person; and (b) the other person is: (i) the Public Guardian; or (ii) the Senior Practitioner; or (iii) a member of NTCAT; or (iv) a health care provider; or (v) a health care decision maker; or (vi) a person acting under the authority of a person specified in subparagraph (i), (ii), (iii), (iv) or (v); and (c) the information is misleading and the person has knowledge of that circumstance; and (d) the other person is acting in an official capacity and the person has knowledge of that circumstance. Maximum penalty: 400 penalty units or imprisonment for 2 years. (2) A person commits an offence if: (a) the person intentionally gives a document to another person; and (b) the other person is: (i) the Public Guardian; or (ii) the Senior Practitioner; or (iii) a member of NTCAT; or (iv) a health care provider; or (v) a health care decision maker; or

Part 6 Offences Health Care Decision Making Act 2023 30 (vi) a person acting under the authority of a person specified in subparagraph (i), (ii), (iii), (iv) or (v); and (c) the document contains misleading information and the person has knowledge of that circumstance; and (d) the other person is acting in an official capacity and the person has knowledge of that circumstance. Maximum penalty: 400 penalty units or imprisonment for 2 years. (3) Strict liability applies to subsections (1)(b) and (2)(b). (4) It is a defence to a prosecution for an offence against subsection (1) or (2) if the defendant, when giving the information or document: (a) draws the misleading aspect of the information or document to the other person's attention; and (b) to the extent to which the defendant can reasonably do so – gives the other person the information necessary to remedy the misleading aspect of the information or document. Note for subsection (4) The defendant has an evidential burden in relation to the matters mentioned (see section 43BU of the Criminal Code). (5) In this section: acting in an official capacity means exercising powers or performing functions under, or otherwise related to the administration of, this Act. 49 Improper exercise of authority (1) A person commits an offence if: (a) the person intentionally engages in conduct; and (b) the conducts purports to be the exercise of authority as a health care decision maker for an adult; and (c) the adult does not have impaired decision making capacity for that health care decision and the person is reckless in relation to that circumstance. Maximum penalty: 400 penalty units or imprisonment for 5 years.

Part 6 Offences Health Care Decision Making Act 2023 31 (2) A person commits an offence if: (a) the person engages in conduct; and (b) the conducts purports to be the exercise of authority as a health care decision maker for an adult; and (c) the adult does not have impaired decision making capacity for that health care decision and the person is reckless in relation to that circumstance; and (d) the person engages in the conduct mentioned in paragraph (a) with the intention obtaining a benefit for the person or another person. Maximum penalty: 400 penalty units or imprisonment for 7 years. (3) Subsection (2)(d) is the fault element for the conduct in subsection (2)(a). (4) Strict liability applies to subsections (1)(b) and (2)(b). 50 Acting without authority (1) A person commits an offence if: (a) the person intentionally makes a health care decision; and (b) the health care decision is in relation to an adult with impaired decision making capacity; and (c) the person is not a health care decision maker and the person is reckless in relation to that circumstance. Maximum penalty: 400 penalty units or imprisonment for 5 years. (2) Strict liability applies to subsection (1)(b). 51 Contravention of decision making principles (1) A person commits an offence if: (a) the person is a health care decision maker; and (b) the person intentionally engages in conduct in the exercise of the decision maker's authority as a health care decision maker; and

Part 6 Offences Health Care Decision Making Act 2023 32 (c) the conduct results in a contravention of section 18 and the decision maker is reckless in relation to that result; and (d) the conduct is not exempted by section 20. Maximum penalty: 400 penalty units or imprisonment for 5 years. (2) A person commits an offence if: (a) the person is a health care decision maker; and (b) the person engages in conduct in the exercise of the decision maker's authority as a decision maker; and (c) the conduct results in a contravention of section 18 and the decision maker is reckless in relation to that result; and (d) the person engages in the conduct mentioned in paragraph (a) with the intention obtaining a benefit for the person or another person; and (e) the conduct is not exempted by section 20. Maximum penalty: 400 penalty units or imprisonment for 7 years. (3) Subsection (2)(d) is the fault element for the conduct in subsection (2)(b). (4) Strict liability applies to subsections (1)(d) and (2)(e). 52 Inducing contravention of decision making principles (1) A person commits an offence if: (a) the person intentionally engages in conduct; and (b) the conduct induces a health care decision maker to contravene section 18 and the person has intention in relation to that result; and (c) the result is not exempted by section 20. Maximum penalty: 400 penalty units or imprisonment for 5 years. (2) A person commits an offence if: (a) the person engages in conduct; and

Part 7 Administrative and other matters Health Care Decision Making Act 2023 33 (b) the conduct induces a health care decision maker to contravene section 18 and the person has intention in relation to that result; and (c) the person engages in the conduct mentioned in paragraph (a) with the intention of obtaining a benefit for the person or another person; and (d) the result is not exempted by section 20. Maximum penalty: 400 penalty units or imprisonment for 7 years. (3) Subsection (2)(c) is the fault element for the conduct in subsection (2)(a). (4) Strict liability applies to subsections (1)(c) and (2)(d). 53 Limitation period for prosecutions (1) Proceedings for an offence against this Act may not be brought later than 2 years after the day on which the offence was committed. (2) A proceeding for an offence may be brought after the end of the limitation period in subsection (1) if: (a) fresh evidence relevant to the offence is discovered; and (b) the court of competent jurisdiction is satisfied that the evidence could not reasonably have been discovered within the limitation period. (3) For subsection (1), if an offence is committed on more than 1 day, the period of time is to be counted from the last day. Part 7 Administrative and other matters 54 Senior Practitioner directives and approvals (1) The Senior Practitioner may, in consultation with the Public Guardian, issue the following: (a) general directives regarding the use of a practice referred to in section 29(1); (b) directives expressly allowing the use of a practice for which a health care decision maker would otherwise have no authority to consent to under section 29.

Part 7 Administrative and other matters Health Care Decision Making Act 2023 34 (2) The Senior Practitioner may approve the use, for a particular adult, of a practice to which a health care decision maker has no authority to consent under section 29, with or without conditions. 54A Delegation (1) The Senior Practitioner may delegate the Senior Practitioner's powers and functions under this Act to a public sector employee. (2) The Senior Practitioner must be satisfied that the employee has the qualifications, clinical experience and personal qualities necessary to exercise the Senior Practitioner's powers and perform the Senior Practitioner's functions. 55 Public Guardian guidelines The Public Guardian may make guidelines for this Act in relation to the following: (a) how to apply and interpret section 13, including determining the appropriate health care decision maker when more than one person may be the appropriate health care decision maker; (b) satisfying the duty of a health care provider under section 23; (c) determining capacity under section 24; (d) administering routine health care under section 25; (e) making health care decisions generally under this Act. 56 Report to Public Guardian A health care provider must give written notice to the Public Guardian of any instance when: (a) the health care provider is aware of the health care decision maker refusing to consent to significant treatment for an adult with impaired decision making capacity; and (b) the health care provider believes on reasonable grounds that the health care decision maker does not know, and cannot infer, the wishes and views of the adult with impaired decision making capacity. Note for section 56 The Public Guardian has powers under the Guardianship of Adults Act 2016 to take action if appropriate in the circumstances.

Part 8 Repeal Health Care Decision Making Act 2023 35 57 Liability of health care providers A health care provider who, in good faith and without negligence, administers or does not administer health care to a person in accordance with this Act and believes on reasonable grounds that the requirements of this Act have been complied with is not: (a) guilty of an offence; or (b) liable for unprofessional conduct or professional misconduct; or (c) liable in any civil proceeding; or (d) liable for contravention of any code of conduct. 58 Regulations (1) The Administrator may make regulations under this Act. Note for subsection (1) See section 65 of the Interpretation Act 1978. (2) The Regulations may apply, adopt or incorporate, with or without changes, the whole or part of a document as in force or existing at a particular time or from time to time. Part 8 Repeal 59 Act repealed The Emergency Medical Operations Act 1973 (Act No. 45, 1973) is repealed.

ENDNOTES Health Care Decision Making Act 2023 36 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Health Care Decision Making Act 2023 (Act No. 19, 2023) Assent date 17 August 2023 Commenced 1 July 2024 (Gaz G13, 20 June 2024, p 2) Attorney-General Legislation Amendment Act 2025 (Act No. 14, 2025) Assent date 6 June 2025 Commenced 1 August 2025 (Gaz G14, 10 July 2025, p 1) 3 LIST OF AMENDMENTS s 54A ins No. 14, 2025, s 4 pt 9 hdg rep No. 19, 2023, s 110 pt 9 div 1 hdg rep No. 19, 2023, s 110 pt 9 div 1 sdiv 1 hdg rep No. 19, 2023, s 110 ss 60 – 75 rep No. 19, 2023, s 110 pt 9 div 1 sdiv 2 hdg rep No. 19, 2023, s 110 ss 76 – 78 rep No. 19, 2023, s 110 pt 9 div 2 hdg rep No. 19, 2023, s 110 pt 9 div 2 rep No. 19, 2023, s 110 sdiv 1 hdg rep No. 19, 2023, s 110 ss 79 – 86 rep No. 19, 2023, s 110 pt 9 div 2 sdiv 2 hdg rep No. 19, 2023, s 110 ss 87 – 88 rep No. 19, 2023, s 110

ENDNOTES Health Care Decision Making Act 2023 37 pt 9 div 3 hdg rep No. 19, 2023, s 110 ss 89 – 100 rep No. 19, 2023, s 110 pt 9 div 4 hdg rep No. 19, 2023, s 110 ss 101 – 102 rep No. 19, 2023, s 110 pt 9 div 5 hdg rep No. 19, 2023, s 110 ss 103 – 109 rep No. 19, 2023, s 110 pt 9 div 6 hdg rep No. 19, 2023, s 110 s 110 rep No. 19, 2023, s 110

1 Health Care Decision Making Act 2023

The Act rests on a set of core legal concepts that determine how rights, duties and risks flow.

Capacity and impairment. The presumption of capacity is statutory: an adult is presumed to have capacity to make health care decisions unless there is evidence to the contrary, s 5. Impaired decision making capacity is decision‑specific and factual, defined by impairment in understanding and retaining information, weighing information, communicating a decision, or understanding its effects, s 8(2)-(4). The Act emphasises context and reasonable adjustment: comprehension and communication include the use of modified language, visual aids or other means, s 8(3)-(4). Capacity can vary over time and across decisions, s 8(5)-(6).
Health care and health care decisions. "Health care" is broadly defined to cover a wide range of services and assessments, s 6. A "health care decision" is a decision whether to commence, continue, withdraw or withhold health care, and is treated as consent or refusal on behalf of the adult, s 7(1)-(3).
Decision maker hierarchy and selection. Section 13 lists possible decision makers in descending priority. The "appropriate" decision maker must be the highest priority person who is an adult and willing and able, s 14(1). "Willing and able" is a multipart test: capacity, reasonable availability, willingness, understanding of obligations, requisite information and time, voluntariness and absence of undue influence, s 9.
Advance consent decisions. An "advance consent decision" in an advance personal plan under the Advance Personal Planning Act 2013 has legal effect as if made by a fully informed adult with capacity, s 19. Health care providers must check for them, s 23(1), and they override other decision makers except in narrow circumstances where NTCAT may disregard them, s 41(1)(e), (2).
Decision making principles. Section 18 is central. A decision maker must give effect to a relevant advance care statement, s 18(2). If none exists, they must decide as they reasonably believe the adult would in the circumstances, s 18(3). Only if they cannot form such a belief must they act in the adult's best interests, s 18(7), with specified matters to consider and a least‑restrictive standard, s 18(8)-(10). Critically, s 18(5) requires giving effect to what the adult would do even where that is not the decision maker's view of best interests, subject to exceptions set out in s 20 and elsewhere.
Restricted practices and restricted health care. The Act limits decision makers’ authority to consent to practices that restrict liberty or are ethically sensitive. Section 29 lists practices that decision makers cannot consent to, but provides exceptions where use is for treatment of a diagnosed illness and is the least restrictive method, emergency prevention of harm, directives from the Senior Practitioner, approvals from hospital directors for up to 72 hours, or as otherwise authorised, s 29(1)-(3), (2)(a)-(f). Section 30 lists procedures for which decision makers generally have no authority: sterilisation, termination of pregnancy, certain tissue removal, experimental or non‑evidence‑based care, electroconvulsive therapy, aversive procedures, and other prescribed procedures, with narrow clinical exceptions for sterilisation and termination if primarily therapeutic and necessary to avoid serious or irreversible damage, s 30(1)-(3).
Health provider duties and protections. Health care providers must search for advance consent, attempt to contact the appropriate decision maker, determine capacity and whether the decision maker needs to act, keep records of efforts, and follow Public Guardian guidelines where reasonable, ss 23-24. Providers are permitted to administer routine and palliative care without decision maker consent subject to limits, ss 25-26. The Act provides a statutory shield for good faith, non‑negligent providers who believe requirements are complied with, s 57.
Urgent care. Part 4 allows immediate, necessary urgent treatment without consent when lifesaving, preventing serious harm, or preventing significant pain or distress, where it is not practicable to obtain consent, and the care is limited to what is necessary, s 39(1).
Tribunal oversight and enforcement. NTCAT has original jurisdiction to make a range of orders, including to decide who is the appropriate decision maker, to limit or vary authority, to make decisions, to approve otherwise prohibited practices, and to disregard advance consent decisions in prescribed situations, s 41. Proceedings under Part 5 are private unless NTCAT orders otherwise, s 43.
Criminalisation. The Act criminalises dishonest representations about being a decision maker, giving misleading information to officials or providers, improper exercise of authority, acting without authority, contravening decision making principles, and inducing contraventions. Penalties include imprisonment and monetary penalty units, and some elements are strict liability, ss 46-52. Limitation period for prosecutions is two years, subject to the fresh evidence exception, s 53.

These concepts interact to produce legal obligations and risks for adults, decision makers, health care providers, and oversight agencies such as the Public Guardian and NTCAT. The Act couples protective duties with criminal penalties and administrative oversight, while preserving certain provider protections and other laws.

The Act allocates duties, rights and risks to identifiable groups. For each group the Act names obligations or rights; this short list is grounded in the statutory text.

Adults who receive health care. All adults are presumed competent under s 5 until evidence shows otherwise. The Act primarily affects adults who have impaired decision making capacity in relation to a particular health care decision, as defined in s 8. For these adults, their advance personal plans and advance care statements have legal force, s 19, and the Act preserves their rights if they retain capacity, s 37(1).
Health care decision makers. Those named in the hierarchy, s 13, may become legal decision makers. That includes appointed health care attorneys under the Advance Personal Planning Act 2013 and guardians under the Guardianship of Adults Act 2016, s 13(a)-(b), as well as relatives, carers, partners, children, parents, siblings and friends, s 13(c)-(i). Decision makers must make reasonable efforts to support the adult to decide, consult where relevant, adhere to the decision making principles, and keep records where they depart from advance statements in permitted circumstances, ss 17-21. Their authority is limited by lists of prohibited or restricted practices and treatments, ss 29-30. Criminal offences apply to decision makers who improperly exercise authority or induce breaches of the principles, ss 49-52.
Health care providers. Individuals who provide health care must check for advance consent decisions and attempt to contact appropriate decision makers before administering care to an adult with impaired capacity, s 23. Providers must determine capacity in collaboration with decision makers as practicable, s 24. They may administer routine and palliative care without consent under specified limits, ss 25-26, and may provide urgent care without consent under Part 4, ss 38-39. Providers face a specific professional conduct provision: administering care that requires a decision under the Act without that decision can amount to unprofessional conduct, s 35. The Act shields providers acting in good faith without negligence, s 57.
Public Guardian. The Public Guardian has statutory authority to make health care decisions in defined fallback circumstances where no appropriate decision maker exists and no NTCAT application has been made, s 22(1). The Public Guardian may also be appointed as guardian or be ordered by NTCAT and must comply with sections governing decision making, ss 22(2)-(3). The Public Guardian can issue guidelines (s 55) and must be notified by health care providers in specified circumstances, s 56. The Public Guardian is a participant in oversight architecture and will incur resource and decision costs in that role.
Senior Practitioner. Appointed under the Commonwealth National Disability Insurance Scheme (Authorisations) Act 2019, the Senior Practitioner may issue directives or approvals concerning restrictive practices under s 29, and delegate powers to qualified public sector employees, ss 54-54A.
NTCAT and tribunal actors. NTCAT has original jurisdiction to hear applications under the Act, may act on its own initiative, make orders resolving disputes about appropriate decision makers, limit authority, make decisions itself, and disregard advance decisions in specified circumstances, ss 40-41. Proceedings are private by default, s 43.
Other persons with a special interest. Anyone whom NTCAT is satisfied has a special interest may apply, s 40(1)(d). Persons who interact with the decision making process , for example hospital directors, medical managers, ethics committees and Human Research Ethics Committees , are implicated by provisions allowing approvals or exceptions, ss 29(2)(e), 30(3).

Who pays. The Act does not create an explicit funding source. Costs fall on:

Health care providers, who must allocate time and resources to capacity assessment, records, contacting decision makers, following Public Guardian guidelines and potentially defending actions or prosecutions, ss 23-24, 55-56, 46-53.
The Public Guardian and NTCAT, which will bear increased operational workloads to issue guidelines, accept reports, determine disputes and consider applications under ss 22, 40-41, 55-56.
Adults and families, who bear the time and emotional cost of disputes, NTCAT proceedings, or seeking to be appointed decision makers.
Government, which bears the administrative and enforcement costs of NTCAT oversight, Public Guardian resourcing and Senior Practitioner directives.

Decision incentives. The Act creates incentives for health care providers to search for advance care documents and to involve the highest ranked available willing and able person (ss 23, 14). It imposes criminal risk on persons who falsely represent themselves, induce breaches of the principles, or improperly exercise authority (ss 46-52), which gives a compliance incentive to be cautious but may also create a defensive practice tendency where providers delay or over‑document decisions. NTCAT’s power to disregard advance consent decisions in objectively limited circumstances creates an incentive for providers and decision makers to seek tribunal clarification when advance statements are ambiguous (s 41(2)). The Act’s urgent care rules lower the barrier to immediate life‑saving action but require documentation that the urgency conditions were met, s 39.

Overall, the Act directly affects the legal responsibilities of adults, their nominated decision makers, health care providers, the Public Guardian, the Senior Practitioner and NTCAT. It assigns operational responsibilities and potential criminal exposure to the parties most closely involved in delivering and authorising health care to adults with impaired decision making capacity.

This section synthesises the Act’s major operational duties, rights and protective rules, with citations to the text.

Presumption and assessment duties

Presumption of capacity. Health actors must start from the presumption an adult has capacity, s 5. This shifts the initial legal burden to produce evidence of impairment to the party asserting impairment.
Determination of capacity. Before a decision maker makes a decision, the relevant health care provider who would perform the care must determine the extent and expected duration of impairment and whether the decision maker needs to exercise authority. This must be done, where reasonably practicable, in collaboration with the decision maker, s 24(1)-(2). If impairment is found to be temporary, care should be limited to what is necessary during that period, s 24(3).

Advance consent and priority duties

Search and reliance obligations. Providers must make reasonable efforts to discover an advance consent decision and, if none is known, to contact the appropriate decision maker, s 23(1)-(3). Providers must keep written records of efforts, s 23(4).
Effect of advance consent. An advance consent decision in an advance personal plan has effect as if made by a fully informed adult with capacity, s 19; providers are authorised to follow it in preference to other decision makers, s 23(2).
NTCAT override. NTCAT may disregard an advance consent decision on specified grounds including it not being intended for the circumstances, not informed, or causing unacceptable pain or otherwise being wholly unreasonable, s 41(2). Providers may rely on prior advance consent decisions even if NTCAT has previously ordered them to be disregarded, if the provider does not know and could not reasonably be expected to know about the order, s 31(2).

Decision making principles and obligations on decision makers

Support and consultation. A decision maker must make a reasonable effort to support the adult to make the decision, and may consult other people with relevant information, s 17.
Primacy of the adult's wishes. Decision makers must give effect to relevant advance care statements, s 18(2). If there is no advance statement, they must act in the way they believe on reasonable grounds the adult would act, s 18(3). If unable to form such a belief, they must act in the adult's best interests after weighing specified considerations, including protecting freedom of decision and acting in the least restrictive way, s 18(7)-(10).
Written records when not complying. A decision maker who relies on s 20 exemptions to depart from an advance care statement must keep a written record of reasons, s 20(3).

Limits on authority

Excluded decision types. Decision makers have no authority to consent to matters ordered by the Local Court under the Disability Services Act 1993, certain mental health treatments under the Mental Health and Related Services Act 1998, and neurosurgery for mental illness, s 11(2).
Restrictive practices. Decision makers cannot consent to practices that restrict rights or freedom of movement, such as seclusion, chemical or mechanical restraint primarily used to influence behaviour, environmental restraint and the like, s 29(1). Exceptions exist where measures are for treatment of diagnosed illness and are the least restrictive, or if expressly authorised by Senior Practitioner directives or short hospital director approvals, ss 29(2)-(3), 54.
Restricted health care. Decision makers generally cannot consent to sterilisation, termination of pregnancy, removal of certain tissue for transplantation, special medical research or experimental treatment, non‑evidence‑based care, electroconvulsive therapy, aversive treatments, or prescribed procedures, s 30(1). Clinical exceptions exist in relation to sterilisation and termination where primarily therapeutic and necessary to prevent serious or irreversible harm, s 30(2).

Health care provider rights and duties

Routine and palliative care. Providers may administer routine personal care without decision maker consent, subject to limitations (no ongoing treatments, no significant intrusion, risk, side effects, pain), s 25(1)-(3). Providers may administer palliative care without consent despite an objection from the decision maker when the patient has an active, progressive disease and is expected to die, s 26(1)-(3).
Urgent care. Providers may administer urgent health care without consent to adults and children when necessary as a matter of urgency to save life, prevent serious damage or prevent significant pain or distress, provided the individual has impaired capacity, it is impracticable to obtain consent, and the care is limited to what is necessary, s 39(1)-(2).
Reliance protection. Providers who reasonably believe an adult has impaired capacity and rely on consent from an advance decision, an appropriate decision maker, the Public Guardian, or an NTCAT order are deemed to have the adult's consent, s 31(1). Providers are protected under s 57 where they act in good faith and without negligence and believe requirements are complied with.

Administrative duties and oversight

Reporting. Providers must notify the Public Guardian when a decision maker refuses significant treatment and the provider believes the decision maker does not know or cannot infer the adult's wishes, s 56.
Guidelines. Public Guardian may issue guidelines for applying the hierarchy and for provider duties including capacity assessment and administration of routine care, s 55.

Criminal offences

False representation, misleading information, improper exercise of authority, acting without authority, contravening decision making principles, inducing contravention, and disclosure of identifying information in NTCAT matters attract criminal penalties, ss 46-52. Some elements are strict liability and maximum penalties vary from 200 penalty units or two years imprisonment to seven years for aggravated offending, ss 46-52; see specific sections for details.

Rights preserved

The Act expressly preserves the rights of adults who retain capacity and does not affect common law recognition of non‑plan instructions, s 37.

These duties and rights state who must do what, and when. The Act’s emphasis on prior wishes, the requirement to make reasonable efforts to support decision making, and the range of criminal sanctions mean that decision makers and providers must document their reasoning and procedural steps.

The Act establishes a mixture of administrative, criminal and tribunal enforcement mechanisms. The text assigns NTCAT broad remedial powers while creating a tight criminal regime for unauthorised or deceptive behaviour.

NTCAT powers and administrative enforcement

Original jurisdiction and orders. NTCAT has original jurisdiction to make orders limiting or varying a decision maker's authority, to decide who is the appropriate decision maker, to make the decision itself, to approve otherwise prohibited practices or health care, to disregard advance consent decisions in specified circumstances, and to take other related steps, s 41(1)-(4). NTCAT must follow the decision making principles in s 18 when making decisions, s 41(5).
Private proceedings and control of publication. Proceedings under Part 5 are private and closed to the public and publication is prohibited unless NTCAT orders otherwise in the public interest; identifying information about the adult is similarly protected, s 43(1)-(2). Section 46 makes disclosure of identity information an offence.
Immediate effect and intervention. The Public Guardian may intervene in NTCAT proceedings, s 42(2). NTCAT may act on its own initiative and may give oral reasons but must provide written reasons on request within 28 days, ss 41(3), 44. Section 45 disapplies internal review under the NT Civil and Administrative Tribunal Act 2014, so decisions under the Act are not internally reviewable.

Criminal offences: categories, elements and penalties

Disclosure of identity information, s 46. Intentionally disclosing identifying information about an adult who is the subject of a Part 5 proceeding, without authorisation, is an offence. Maximum penalty: 200 penalty units or 2 years imprisonment.
False representation, s 47. Intentionally falsely representing oneself or another as a health care decision maker, or having authority for a particular matter, with knowledge of falsity is an offence; maximum penalty 200 penalty units or 2 years imprisonment. An aggravated form where the false representation is intended to obtain a benefit carries up to 7 years imprisonment.
Misleading information or documents, s 48. Intentionally providing misleading information or documents to specified persons acting in an official capacity (Public Guardian, Senior Practitioner, NTCAT member, health care provider, decision maker or authorised agents) with knowledge of the misleading nature is an offence, maximum 400 penalty units or 2 years imprisonment. Strict liability applies to who the recipient is, s 48(3). A defence exists where the giver drew attention to the misleading aspect and reasonably remedied it, s 48(4).
Improper exercise of authority, s 49. Intentionally purporting to exercise health care decision maker authority where the adult does not have impaired capacity, and being reckless about that fact, is an offence; maximum 400 penalty units or 5 years imprisonment, with aggravated form up to 7 years where intended to obtain a benefit. Strict liability applies to certain elements, s 49(4).
Acting without authority, s 50. Intentionally making a health care decision for an adult with impaired capacity where the person is not a decision maker and is reckless about that circumstance is an offence, maximum 400 penalty units or 5 years imprisonment, s 50. Strict liability applies to the requirement that the adult has impaired capacity, s 50(2).
Contravening decision making principles, s 51. A health care decision maker who intentionally engages in conduct in the exercise of authority that results in contravention of s 18, and is reckless as to that result, commits an offence, maximum 400 penalty units or 5 years imprisonment. An aggravated form with intent to obtain a benefit carries up to 7 years. Some elements are strict liability, s 51(4).
Inducing contravention, s 52. Intentionally inducing a decision maker to contravene s 18 is an offence, maximum 400 penalty units or 5 years imprisonment; aggravated form up to 7 years where intended to obtain a benefit. Some elements carry strict liability, s 52(4).

Fault elements and strict liability

Several provisions incorporate strict liability for particular elements, for example where the adult has impaired capacity is sometimes strict liability (s 50(2)), and other subsections identify strict liability for certain subparagraphs, ss 48(3), 49(4), 51(4), 52(4). Where strict liability applies, the prosecution need not prove mens rea for that element.
The Criminal Code Part IIAA applies to offences against this Act and provides defences and principles of criminal responsibility and burden of proof, s 10 note.

Limitation periods

Prosecutions for offences under the Act must generally be brought within two years of the offending, s 53(1). Proceedings can be brought after this period if fresh evidence is discovered and the court approves, s 53(2).

Administrative/professional penalties

Professional conduct implications are explicit: a provider administering care that requires a decision under the Act without that decision may be guilty of unprofessional conduct under the Health Practitioner Regulation National Law or other prescribed law, s 35. Section 57 provides a protective safe harbour for providers acting in good faith without negligence and believing requirements have been met.

Enforcement architecture: who enforces what

Criminal enforcement will proceed through ordinary prosecutorial channels, subject to the two year limitation and general criminal law principles, s 53.
NTCAT provides administrative enforcement and remedy for disputes about decision maker selection, the validity of advance consent decisions, and approvals for otherwise restricted practices, s 41. NTCAT can act on application or of its own motion, s 41(3); its proceedings are private by default, s 43.
The Public Guardian has powers both as a decision maker when appointed or when no other appropriate decision maker exists, s 22, and as a monitoring agency receiving reports under s 56 and issuing guidelines under s 55.

The Act therefore combines tribunal oversight, statutory offence provisions with prison terms and penalty units, professional regulatory consequences, and administrative reporting and guideline regimes. The variety of enforcement tools means regulated parties face both criminal exposure and administrative correction as possible outcomes for non‑compliance.

The Act explicitly cross‑references and preserves the operation of several Territory, Commonwealth and national laws. The text both incorporates and excludes certain interactions.

Advance planning and guardianship schemes

The Act incorporates persons appointed under the Advance Personal Planning Act 2013 and the Guardianship of Adults Act 2016 into the hierarchy. A person with health care authority appointed in an advance personal plan has highest priority, s 13(a). Guardians with health care authority under the Guardianship of Adults Act 2016 are the second tier, s 13(b). The Act also defines advance care statements by reference to the Advance Personal Planning Act 2013, s 4.

Mental health and disability laws

The Act excludes certain mental health orders and treatments from decision maker authority. A decision maker has no authority for treatment or care ordered by the Local Court under the Disability Services Act 1993, or for certain treatments under the Mental Health and Related Services Act 1998 (treatment for complex cognitive impairment or mental illness, or of a mentally disturbed person), or for neurosurgery for mental illness, s 11(2).
It also links to the National Disability Insurance Scheme (Authorisations) Act 2019 by identifying the Senior Practitioner as the person appointed under s 9 of that Act, s 4 definition. The Senior Practitioner may issue directives and approvals about restrictive practices, ss 54-54A.

Health regulation and professional standards

The definition of "health care" includes services by health practitioners under the Health Practitioner Regulation National Law, s 6(1)(a). Section 35 makes administration of health care without a required decision potentially unprofessional conduct under that National Law and other prescribed laws, linking the Act to professional disciplinary regimes.
The Act preserves other laws that allow non‑consensual care, s 36, for example Part 3 of the Mental Health and Related Services Act 1998 is noted as an example.

Research and ethics

Section 30(3) excepts certain research activities from the prohibition on decision maker consent to "special medical research or experimental health care", but only if the research is approved by a Human Research Ethics Committee registered with NHMRC and conducted in accordance with NHMRC human research guidelines, or is prescribed by regulation. The Act therefore cross‑links to Commonwealth regulation of human research via the National Health and Medical Research Council Act 1992.

Tribunal law and Civil and Administrative Tribunal Act

The Act gives NTCAT original jurisdiction under s 41(4). It modifies standard NTCAT procedures by requiring closed proceedings and by disapplying the internal review provision of the Northern Territory Civil and Administrative Tribunal Act 2014, s 45. Section 44 modifies how NTCAT may deliver reasons.

Criminal law

Part IIAA of the Criminal Code applies to offences under the Act, and the Act’s notes expressly refer to Part IIAA for general criminal principles and defences, s 10 note.

Other Territory Acts

The Act references the Transplantation and Anatomy Act 1979 in defining health care to include the removal of tissue in accordance with Part 2 of that Act, s 6(1)(k), and identifies non‑regenerative tissue as defined in the Transplantation and Anatomy Act 1979 for section 30 restrictions, s 30(1)(c).
For approvals of restrictive practices, if the adult is in a public hospital the approving officer is the medical practitioner who is director of medical services for the hospital; for private hospitals, the manager under the Private Hospitals Act 1981 is the approving officer, s 29(2)(e).

Commonwealth laws and aged care

The Act gives an example that an aged care assessment under the Aged Care Act 1997 (Cth) is a form of health care assessment for the purposes of s 6(2), signalling that assessments under Commonwealth aged care law fall within the Act’s ambit where relevant.

Preservation and precedence

Part 4 (urgent health care) prevails over Parts 2 and 3 where inconsistent, s 38(2). Section 36 expressly states the Act does not affect other Territory laws that allow non‑consensual care, which means that where a separate statutory scheme authorises treatment without consent, that scheme continues to operate alongside this Act.

Regulations and incorporation

The Administrator may make regulations under the Act, and regulations may apply, adopt or incorporate external documents, s 58(1)-(2). This provides a route for the Executive to incorporate particular procedural or clinical standards into the regulatory regime.

In short, the Act sits within a network of civil, criminal, professional and health regulation. It recognises and defers to some existing regimes (advance plans, guardianship, mental health law, human research ethics), restricts or excludes decision maker authority where those other regimes govern, and provides for interlocking oversight by NTCAT, the Public Guardian and the Senior Practitioner. The Act preserves other statutory non‑consensual powers so it functions as part of, not as a replacement for, the Territory’s broader legal framework for health, mental health and research.

The text supplied includes endnotes listing the original Act and subsequent amendments recorded in the instrument’s endnotes. The relevant items in the document are:

Health Care Decision Making Act 2023, Act No. 19 of 2023, received assent on 17 August 2023 and commenced 1 July 2024, Gazette G13, 20 June 2024, p 2, per endnote 2.
Attorney‑General Legislation Amendment Act 2025 (Act No. 14, 2025) is noted in the endnotes as having assent on 6 June 2025 and commencing 1 August 2025, Gazette G14, 10 July 2025, p 1, per endnote 2.
The list of amendments, endnote 3, records that section 54A (delegation of the Senior Practitioner’s powers) was inserted by No. 14, 2025, s 4; that is, by the Attorney‑General Legislation Amendment Act 2025. The notation "s 54A ins No. 14, 2025, s 4" confirms the insertion of the new provision permitting delegation to public sector employees, and specifying required qualifications and experience, s 54A(1)-(2).
The endnotes also show a suite of repeals of Part 9 headings and sections effected by No. 19, 2023 s 110, but those repeals appear to be housekeeping matters for provisions not included in the text provided. The list states many headings and sections (ss 60-109 and others) were repealed by s 110 of No. 19, 2023. Without the prior text, the endnote reveals only that a substantial reorganisation or repeal of Part 9 occurred in the Act’s legislative history.

What the endnotes do not show

The supplied endnotes record the enactment and the 2025 amendment inserting s 54A and the repeal activity, but do not show any other amendments or subordinate instruments such as regulations, guidelines, directives or NTCAT practice notes. The Act empowers the Administrator to make regulations, s 58, and empowers the Public Guardian and Senior Practitioner to issue guidelines and directives, ss 54-55, but those instruments are not in the supplied text. Therefore any procedural material, delegated instruments, or policy changes made in regulation or by the Public Guardian or Senior Practitioner after these dates are not reflected here.

Practical effect of the 2025 amendment

The insertion of s 54A formalises a delegation route for the Senior Practitioner’s powers and functions to a public sector employee, subject to the Senior Practitioner being satisfied of the employee's qualifications, clinical experience and personal qualities, s 54A(1)-(2). Delegation can materially change how approvals and directives under s 54 are operationalised, by enabling administrative delegation rather than centralised decision making.

If you need a legislative history in table form or want extracts of the amendment Act that inserted s 54A, those texts are not included in the source and would need to be obtained from Northern Territory parliamentary or legislative databases. The Act as supplied documents the original enactment in 2023 and the insertion of s 54A by the 2025 amendment.

The supplied Act text and endnotes do not contain any case law, court decisions or tribunal determinations interpreting the Act. The Act itself references NTCAT’s powers and procedural variations, but no NTCAT or court decisions are cited in the statute. Consequently:

There is no litigation history recorded in the source text. The Act is described "as in force at 1 August 2025" and the endnotes list the Act’s assent and commencement information and a 2025 amendment, but no reported decisions under the Act are included.
The absence of reported cases in the source means there are no judicial or tribunal interpretations supplied that clarify ambiguous terms such as "reasonable grounds", "reasonable effort", "willing and able", or the application of s 18’s primacy rule requiring decision makers to act in accordance with what the adult would do even if not in their best interests, s 18(5).
Practitioners should therefore anticipate that many of the Act’s operational uncertainties will be resolved in practice through NTCAT decisions and possibly appellate review. NTCAT is given original jurisdiction (s 41(4)), can hear applications by health care providers, decision makers, the Public Guardian or persons with a special interest (s 40(1)), and may act on its own initiative (s 41(3)). Over time, NTCAT decisions will form a developing body of administrative interpretation and practice.

In short, the statutory record in the supplied source contains no litigation or reported decisions. For litigation history or jurisprudential development, one must consult NTCAT and court databases for decisions made since commencement, as the Act creates new tribunal pathways likely to generate case law in practice.

The Act contains multiple provisions that create legal risk, procedural traps or counterintuitive effects. The following are concrete "gotchas" with citations and the mechanisms that produce the risk.

Prior wishes can override best interests, with criminal exposure if ignored

Section 18(5) mandates that if a decision maker forms a belief on reasonable grounds about what the adult would do, they must exercise authority accordingly, even if doing so may not be in the adult's best interests. The only carve outs are limited and must be recorded where relied on, s 20(1)-(3). Failure to follow this rule can expose a decision maker to criminal prosecution under s 51 for contravening decision making principles, because the offence targets intentional conduct resulting in contravention of s 18 and recklessness as to that result, s 51(1). This creates a legal tension where respecting autonomy may require permitting outcomes that some would describe as harmful; the Act makes that an express statutory requirement absent the listed exemptions.

NTCAT can disregard advance consent decisions but only on narrow grounds

Advance consent decisions have the effect of decisions made by a fully informed adult, s 19. NTCAT may disregard such an advance consent decision only if it is satisfied one of the statutory grounds in s 41(2) applies, including that the advance decision was not intended to apply, was not informed, or would cause unacceptable pain or be wholly unreasonable. Practitioners cannot unilaterally disregard an advance decision; doing so can expose providers and decision makers to offences like s 51 or administrative complaints. If an advance decision is ambiguous, seeking urgent NTCAT clarification may be necessary, but urgent care rules in Part 4 might allow immediate treatment where delay is not practicable, s 39.

Health care providers’ reliance protections require reasonable grounds

Section 31 allows providers to rely on consent from advance decisions, appropriate decision makers, the Public Guardian, or NTCAT. The reliance must be based on reasonable grounds that the adult has impaired capacity and the person giving consent is the appropriate decision maker, s 31(1)(a)-(b). Providers acting on false representations risk liability under s 47 (false representation) or s 48 (misleading information), and professional discipline per s 35. Providers should therefore document reasonable grounds carefully.

Strict liability elements raise evidentiary risk

Several offences have strict liability for particular elements (e.g. s 48(3) strict liability for who was the recipient, s 50(2) strict liability that the adult has impaired capacity for the acting without authority offence). Strict liability can increase risk for otherwise well‑intentioned actors because the prosecution does not need to prove mens rea for those elements. Defence strategies must therefore focus on available defences under the Criminal Code and proof of the remaining fault elements.

Two year limitation period for prosecutions

Section 53 imposes a two year limitation period for prosecutions, which is relatively short for complex care matters where harms may become apparent later. There is an exception if fresh evidence is discovered and the court is satisfied it could not reasonably have been discovered within the limitation period, s 53(2). Parties should be cautious about delayed complaints and ensure good records from the outset.

Public Guardian default appointment may be automatic

If a higher priority person exists under ss 13(a)-(b) but is not willing or able to act and does not apply to NTCAT as required, the Public Guardian is taken to be the health care decision maker for the adult, s 14(3)-(5). That can lead to automatic substitution if a higher priority person fails to act promptly, and may produce unexpected changes in who makes decisions.

Urgent care prevails over non‑urgent rules, but exclusions apply

Part 4 prevails over Parts 2 and 3 where inconsistent, s 38(2), enabling urgent treatment without consent under s 39. However doctors must still check for advance refusals, because urgent care is not authorised where the provider is aware the individual has refused the care via an advance consent decision or a previously informed refusal when competent, s 39(2). That means a provider must balance urgency with the duty to check for advance refusals.

Hospital approvals for restrictive practices are time‑limited

A practice otherwise excluded under s 29(1) may be approved for up to 72 hours by hospital directors under s 29(2)(e), but cannot be reapproved, s 29(3). This 72 hour ceiling is tight and requires planning for alternative measures or obtaining Senior Practitioner directives or NTCAT orders beyond the emergency period.

Wide criminal penalties for non‑decision makers acting in the area

Individuals who are not statutory decision makers but make health care decisions can face s 50 offences, with up to five years imprisonment. This criminalises well‑intentioned family interventions in borderline capacity situations, raising the need for clear processes to designate and verify decision maker status in acute care settings.

Record keeping obligations and report triggers

Health care providers must keep written records of their efforts to find advance consent and to contact decision makers, s 23(4). Decision makers who rely on s 20 exemptions must record the reasons, s 20(3). Providers must notify the Public Guardian where a decision maker refuses significant treatment and the provider believes the decision maker does not know the adult’s wishes, s 56. Failure to observe these documentation duties can increase civil and criminal risks.

Interaction with other laws can be overlooked

The Act preserves other laws permitting non‑consensual care, s 36, and excludes certain treatments from decision maker authority that are governed by other statutes, s 11(2). Practitioners must know the full statutory landscape. For example, the Mental Health and Related Services Act 1998 retains its own treatment regimes and interacts with the Act’s limitations, s 11(2).

Each of these "gotchas" flows from a concrete textual mechanism in the Act. Practitioners must embed procedural checks, documentation templates, and escalation pathways into clinical and institutional workflows to mitigate these risks.

This section turns statutory duties into operational steps for the main actors: health care providers, health care decision makers, the Public Guardian, and institutions such as hospitals. Each step cites the relevant statutory provision(s).

For health care providers (clinicians, nurses, allied health, hospital administrators)

Start with presumption of capacity and document the assessment process. Record the evidence that led to a conclusion of impairment, referencing s 5 and the criteria in s 8. For capacity determinations, follow s 24: determine extent and likely duration of impairment, and whether a decision maker needs to act. Where collaboration with the decision maker is reasonably practicable, do so, s 24(2).
Search for advance consent decisions before administering care. Make reasonable efforts to locate advance personal plans and advance care statements, s 23(1). Keep a written record of search steps and outcomes, s 23(4).
If no advance consent is found, contact the appropriate health care decision maker. Use the statutory hierarchy in s 13 and the "willing and able" criteria in s 9 to identify who should be contacted, s 23(3). Document contact attempts and responses, s 23(4).
For routine health care, confirm it fits the statutory definition and limits in s 25. Do not rely on s 25 authorization for ongoing courses of treatment, significant intrusions into the body, substantial risk of harm, significant side effects, or where the adult objects, s 25(3). Document the clinical rationale and why the care is classified as routine.
For palliative care, ensure criteria in s 26(1) are satisfied: active progressive disease, little or no prospect of cure, expected to die. Consult the decision maker as required, s 26(2). Note that palliative care may be administered despite a decision maker’s objection in these circumstances, s 26(1).
Where urgent care is needed, apply s 39(1) conditions: reasonably believe the care is necessary as a matter of urgency to save life, prevent serious damage, or prevent significant pain or distress, that the person has impaired capacity, that obtaining consent is impracticable, and that the care is limited to what is necessary. Document the urgency, the assessment of capacity, attempts to obtain consent, and why delay was impracticable. Check for advance refusals because s 39(2) bars urgent treatment where an advance refusal exists.
If relying on a decision maker’s consent, ensure reliance is reasonable: verify the person’s authority, capacity to make the decision, availability and understanding under s 9. Where possible, obtain evidence of appointment or guardianship (advance personal plan, guardianship order). Keep records to show reasonable grounds as required by s 31.
Follow Public Guardian guidelines where reasonable. The Act explicitly requires providers to make reasonable efforts to follow guidance issued under s 55, s 23(5), and to follow relevant guidelines on capacity and routine care, s 24(4), s 25(4). Secure and document access to the current guidelines.
Report certain refusals. If the decision maker refuses significant treatment and you believe they do not know or cannot infer the adult's wishes, give written notice to the Public Guardian, s 56.
Maintain contemporaneous notes and contemporaneous clinical justification to rely on the s 57 protection: act in good faith, be non‑negligent, and be able to show you believed on reasonable grounds requirements were met, s 57.

For health care decision makers (appointed attorneys, guardians, relatives)

Confirm authority. Before making any health care decision, confirm you are the appropriate decision maker per the hierarchy, s 13, and that you meet the "willing and able" criteria in s 9. If in doubt, apply to NTCAT for confirmation, s 14(3)-(4).
Support the adult to decide. Make reasonable efforts to assist the adult to make the decision using practicable supports, s 17(1). Consult others with relevant information, s 17(2).
Apply the decision making principles. Give effect to any relevant advance care statement, s 18(2). If none, act in the way you reasonably believe the adult would act, s 18(3); only if you cannot form a reasonable belief act in the adult's best interests while weighing the statutory considerations and adopting the least restrictive alternative, ss 18(7)-(10).
Keep records when departing from advance statements. If relying on an exemption in s 20 to disregard an advance care statement, keep a written record of reasons, s 20(3).
Respect express exclusions. Do not consent to restricted practices and treatments for which you have no authority under s 29(1) or s 30(1). If you consider a restricted option necessary, seek NTCAT approval or Senior Practitioner approval/directive where permitted, s 41(1)(d)-(e), s 54.
Avoid undue influence and document voluntariness. The "willing and able" test requires absence of undue influence, s 9(h). Keep evidence that you considered the adult’s views, prior statements, and personal knowledge, s 18(4).
Protect yourself from criminal exposure. Section 51 criminalises contravening the decision making principles. Document your decision process, the information you had, the supports used, and the reasoning that shows you met the statutory standard.

For institutions and managers (hospitals, private health services)

Implement intake and triage processes to search for advance plans and to identify potential impaired capacity cases. Ensure staff know to record steps as required by s 23(4).
Ensure policies map to statutory limits on routine and palliative care, and provide clinical escalation pathways where care exceeds routine limits or raises questions about restricted practices in s 29 or restricted health care in s 30.
Authorise hospital directors to provide short approvals for restrictive practices only within the statutory 72 hour window, s 29(2)(e)-(3). Implement review and escalation mechanisms to Senior Practitioner or NTCAT before the 72 hour expiry.
Provide staff training on the hierarchy in s 13, the "willing and able" test in s 9, and the decision making principles in s 18. Train staff on the criminal offence provisions that can apply to false representation, improper exercise of authority and misleading information, ss 46-52.
Maintain secure systems for documenting capacity assessments and decision maker contacts, to meet the evidentiary needs of potential prosecutions or NTCAT proceedings.

For the Public Guardian and Senior Practitioner

Issue guidelines early. The Public Guardian’s statutory power to make guidelines under s 55 covers capacity determinations, application of the hierarchy, provider duties and routine care. Timely, clear guidelines reduce uncertainty for providers and decision makers, and the Act requires reasonable effort to follow them, ss 23(5), 24(4), 25(4).
Define administrative processes for receiving reports under s 56 and for acting as a decision maker under s 22, including resourcing contingencies where the Public Guardian becomes the default decision maker because higher‑priority persons do not apply to NTCAT, s 14(5).
Use the Senior Practitioner’s delegation power (s 54A) prudently. Where s 54 permits directives and approvals for restrictive practices, delegation under s 54A should be matched to clear criteria for qualifications and experience and accompanied by operational guidelines.

For lawyers and advocates

Use NTCAT proactively. If there is dispute over the appropriate decision maker, the effect of an advance consent decision, or the legality of a proposed treatment, an application under s 40 can secure an order under s 41. File applications "as soon as practicable", and without delay where the challenge concerns a decision contrary to an adult’s wishes, s 40(2)-(3).
Protect advance preferences. Help clients prepare clear advance personal plans to reduce the risk of ambiguity that could lead to NTCAT intervention; be aware NTCAT can disregard advance decisions only on limited statutory grounds, s 41(2).
Document and preserve evidence to meet the "reasonable grounds" and "reasonable effort" standards throughout the care pathway.

Across the board: record keeping and contemporaneous justification are central compliance measures, supported by the Act’s multiple written record obligations (ss 20(3), 23(4)). Training, checklists for advance plan searches, clear escalation pathways to Senior Practitioner or NTCAT for exceptions, and institutional policies reflecting the Act’s limits on decision maker authority will materially reduce legal exposure.

If you would like, I can produce practical templates: (1) a clinician checklist for s 23 and s 24 compliance, (2) a decision maker checklist aligned to s 17-21 and s 29-30, and (3) a hospital escalation protocol for restrictive practices that maps to the 72 hour approval window in s 29(3) and Senior Practitioner directives in s 54.

Health Care Decision Making Act 2023

Plain English Summary

Deep Dive

What it does

Current sections

Health Care Decision Making Act 2023

Source text: opening excerpt

1 Health Care Decision Making Act 2023

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply