Medical Treatment (Health Directions) Act 2006

Health direction. The Act defines a health direction as a direction under s 7: an adult’s direction to refuse, or require the withdrawal of, medical treatment generally or in relation to a particular kind of treatment (s 7(1)). A health direction may be written, oral, or given in any other way (s 7(2)). The Act bars those already under a guardian appointed under the Guardianship and Management of Property Act 1991, and persons with impaired decision-making capacity, from making health directions (s 7(3)). The signpost definition of decision-making capacity points to the Powers of Attorney Act 2006, s 9(1) (s 3, dictionary).

Formal requirements. Written health directions must be signed by the maker or by another person at the maker’s direction, witnessed by two other people, and each witness must sign in the presence of the other witness and the maker (s 8). Non-written directions are valid only if witnessed by two health professionals present at the same time, one of whom must be a doctor (s 9(1)). The Act makes the non-written witness rule subject to s 6 (which preserves other legal rights and excludes palliative care) and s 11 (statutory information and capacity checks) (s 9(2)).

Capacity and information. If a person with decision-making capacity has made a health direction, the treating health professional must take all reasonable steps to ensure the person has been informed about the nature of the illness, available alternative treatments, the consequences of available treatments, and the consequences of remaining untreated (s 11(2)). The professional must believe, on reasonable grounds, that the person understood the information, weighed options, and confirmed the decision to refuse or withdraw treatment (s 11(3)). Health professionals must not proceed to withhold or withdraw treatment unless satisfied the direction complies with the Act and has not been revoked or changed (s 12).

Revocation. A health direction may be revoked by the maker clearly expressing to a health professional or someone else a decision to revoke, with revocation permitted in writing, orally, or any other way (s 10). The revocation test is functional rather than formal; the maker must “clearly express or indicate” a decision to revoke (s 10(1)-(2)).

Record and notification duties. If a health professional or other person becomes aware that a patient in a health care facility has made or revoked a health direction, they must tell the person in charge of the facility and provide the circumstances of making or revocation (s 13). The person in charge must take reasonable steps to ensure a copy of the direction or revocation is placed with the patient’s file, or if impossible, a note is placed with the file (s 14).

Interaction with guardians, health attorneys and enduring powers. Where a person has made a health direction and later becomes impaired such that a guardian is appointed or a health attorney is asked to consent to treatment, any power to consent must be exercised consistently with the health direction (s 18(2)). A health attorney need not act consistently if it is not reasonable to do so; the Act gives examples such as urgency or unawareness after reasonable enquiries (s 18(3) and examples). Where an enduring power of attorney deals with health care and medical research matters, s 19 prescribes whether the health direction or the enduring power prevails depending on which instrument was made later, and provides that the ACAT may declare consistency or inconsistency on application (s 19(2)-(4)).

Protections and obligations for clinicians. The Act shields clinicians from civil or criminal liability where they honestly make decisions about capacity or revocation (s 15), and from professional sanctions and civil or criminal liability when they act in reasonable reliance on decisions they believe comply with the Act (s 16). The Act also requires clinicians to give adequate consideration to the patient’s account of pain and suffering and to provide relief to the maximum extent reasonable (s 17).

Regulation and forms. The Minister may approve mandatory forms which must be used where approved (s 21). The Executive may make regulations to support the Act (s 22).

Offence. The Act creates a specific offence of dishonestly inducing another person to make or revoke a health direction, with a statutory maximum penalty of 100 penalty units, imprisonment for one year, or both (s 20). The republication sets out the penalty unit values applicable at the republication date (preface).

Primary actors. The Act principally affects three groups: patients (adults who may make health directions), health professionals (doctors and nurses specified as “health professional” in the dictionary), and institutional actors such as persons in charge of health care facilities (hospitals, residential care homes and residential disability care facilities as defined in s 13). Patients who are under guardianship or who lack decision-making capacity are excluded from making health directions (s 7(3)).

Health professionals and facility managers. Doctors and nurses carry on-the-ground responsibilities. Clinicians must satisfy statutory information and capacity requirements before giving effect to a health direction (s 11). They must not proceed to withhold or withdraw treatment unless satisfied the direction complies with the Act and has not been revoked (s 12). Health facility managers must ensure notification and file-insertion obligations are met when staff or others become aware of a patient making or revoking a direction (ss 13-14). Those obligations apply to public and private hospitals, day hospitals, residential care homes under the Aged Care Act 2024 (Cwlth), and residential disability care facilities; these terms are defined for the purposes of s 13 (s 13(3)).

Decision-makers under other instruments. The Act affects guardians appointed under the Guardianship and Management of Property Act 1991 and attorneys operating under enduring powers of attorney under the Powers of Attorney Act 2006. If a person with a health direction later becomes incapable and a guardian is appointed or a health attorney is asked to consent, the guardian or health attorney must exercise consent powers consistently with the health direction, except where it is not reasonable to do so (s 18). For enduring powers of attorney that deal with health care or research matters, the Act prescribes which instrument prevails depending on the chronology (s 19). Attorneys may seek declaratory relief from the ACT Civil and Administrative Tribunal in relation to consistency (s 19(4)).

Third parties and institutions. Residential facilities and hospitals bear administrative and compliance costs from notification and recordkeeping duties (ss 13-14). The Executive and Minister are affected institutionally because the Minister may approve mandatory forms (s 21) and the Executive may make regulations (s 22). The offence provision in s 20 targets people who might attempt to influence the creation or revocation of directions dishonestly; that imposes criminal enforcement duties on prosecuting authorities.

Who pays and who decides. Patients pay principally in the sense of bearing the consequences of their choices; they decide whether to make or revoke a health direction, subject to capacity limits (ss 7, 10). Clinicians decide whether a direction complies with the Act and whether the person has understood and weighed options, they decide whether to withhold or withdraw treatment under the statutory standard of “reasonable grounds” (ss 11-12). Facilities pay for administrative compliance, and may pass costs on to consumers or insurers in the ordinary course. The tribunal system pays to resolve disputes where attorneys seek declarations (s 19(4)); criminal justice resources may be used when s 20 offences are prosecuted.

Distribution of discretion. The Act places significant decision-making discretion on treating health professionals by requiring them to make assessments on reasonable grounds about compliance, capacity, revocation and understanding (ss 11-12). It provides statutory protection for those who act honestly and reasonably (ss 15-16), but leaves open the possibility of litigation or tribunal review where disputes arise about whether the clinician’s judgement met the statutory standard.

Patients’ rights to refuse and to pain relief. The Act confers on adults the right to make a direction refusing medical treatment generally or particular kinds of treatment (s 7(1)). It also establishes a right to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances when treatment is withheld or withdrawn (s 17(2)). The health professional must adequately consider the patient’s report of pain and suffering when providing relief (s 17(3)). The Act expressly states its objectives are to protect the right to refuse treatment and to secure relief from pain and suffering (s 5).

Formal duties for giving and revoking directions. Written directions must satisfy a tripartite witnessing and signing structure: maker signs or directs a signatory, two witnesses must sign, and each witness must sign in the presence of the other witness and the maker (s 8). Non-written directions require contemporaneous witnessing by two health professionals, one of whom must be a doctor (s 9(1)). A health direction may be revoked by clear expression to a health professional or someone else, by any form of communication (s 10).

Clinicians’ pre-implementation duties. Where the maker has decision-making capacity, the treating health professional must take all reasonable steps to inform the person about the nature of the illness, alternatives, consequences of available treatments, and consequences of remaining untreated (s 11(2)). The professional must believe, on reasonable grounds, that the person understood the information, weighed options, and confirmed the decision to refuse or withdraw treatment (s 11(3)). A clinician must not withhold or withdraw treatment unless they believe, on reasonable grounds, the direction complies with the Act and has not been revoked or changed since it was made (s 12).

Facility notification and recordkeeping duties. A health professional or other person who becomes aware that a patient in a health care facility has made or revoked a health direction must tell the person in charge of the facility about the event and the circumstances in which it occurred (s 13(2)). The person in charge must take reasonable steps to ensure a copy of the direction or revocation is placed with the patient’s file or, where a copy cannot be obtained, that a note is entered in the file (s 14).

Interaction with guardians and attorneys. Where a guardian or health attorney gains power after a health direction is made (and after a doctor declares the person has impaired decision-making capacity), the guardian or health attorney must exercise consent powers consistently with the health direction (s 18(2)). A health attorney may depart from the direction if doing so would not be reasonable in the circumstances (s 18(3)). For enduring powers of attorney and health directions that both deal with health care or medical research matters, the later instrument predominates: if the health direction was made before the enduring power, the power prevails; if the health direction was later, it prevails (s 19(3)). The ACAT can resolve questions of consistency (s 19(4)).

Protections for decision-makers and clinicians. Health professionals who honestly make decisions about capacity or revocation are protected against civil or criminal liability solely on account of making that decision (s 15(2)). Health professionals and persons acting under their direction who honestly and reasonably believe a decision complies with the Act and then withhold or withdraw treatment are protected from professional sanction, and from civil or criminal liability on account only of that withholding or withdrawal (s 16(2)-(3)).

Offence and forms. Dishonestly inducing someone to make or revoke a health direction is a criminal offence with a specified maximum penalty (s 20). The Minister may approve forms which, where approved for a particular purpose, must be used (s 21).

Preservation clauses. The Act does not affect any right under other Territory law to refuse medical treatment and explicitly does not apply to palliative care; it also does not limit duties to advise or provide other medical treatment (s 6).

Criminal offence for dishonest inducement. The Act creates a standalone criminal offence: a person must not dishonestly induce someone else to make or revoke a health direction (s 20). The maximum penalty in the Act is 100 penalty units, imprisonment for one year, or both. The republication notes the penalty unit values at the republication date, $160 for an individual and $810 for a corporation, referring to the Legislation Act 2001, s 133 (preface). The Act does not create other criminal offences specifically for breach of duties such as failure to notify under s 13 or failure to place a copy in the file under s 14.

Civil liability and professional regulation. The Act expressly limits civil and criminal liability for clinicians when they make honest decisions about capacity or revocation (s 15) and for those who rely on decisions that they honestly and reasonably believe comply with the Act (s 16). The Act further specifies that withholding or withdrawing treatment in reliance on such a decision is not a breach of professional etiquette, ethics, or a rule of professional conduct (s 16(2)). Those statutory protections reduce litigation risk for clinicians but do not immunise negligent conduct that falls outside the “honest” and “reasonable grounds” standard; the Act does not abrogate other civil obligations or statutory duties outside its text (see s 6(3), preserving duties to advise and inform and to provide other medical treatment).

Tribunal recourse and declaratory powers. The Act contemplates administrative/tribunal resolution where conflicts arise between health directions and enduring powers of attorney. An attorney may apply to the ACT Civil and Administrative Tribunal to declare that a health direction is consistent or inconsistent with an enduring power of attorney (s 19(4)). The ACAT’s jurisdiction is the designated mechanism for declaratory relief under s 19(4).

Enforcement actors and practical enforcement. Criminal enforcement of the s 20 offence will be carried out by prosecuting authorities. Enforcement of facility duties (ss 13-14) and compliance with procedural requirements will primarily occur through clinical governance, internal facility procedures, accreditation processes, civil litigation where applicable, and tribunal applications where legal questions about capacity or consistency arise. The Act empowers the Minister to approve forms that must be used where approved (s 21), and the Executive to make regulations (s 22), creating administrative levers that can clarify compliance expectations; enforcement of any regulatory offences would depend on the content of those regulations, which are not included in the Act text.

Evidence and admissibility. Because the Act allows oral or “any other way” health directions (s 7(2)) but places stricter witnessing requirements on non-written directions (s 9(1)), the evidentiary burden in disputes will fall on proving the content, timing and authenticity of non-written directions. The Act decreases, but does not eliminate, evidentiary uncertainty by requiring two health professional witnesses for non-written directions. The statutory protections for clinicians who act on reasonable grounds may be relevant to admissibility and to the likelihood of successful civil claims.

Penalty unit context and fines. The Act sets the quantitative maximum penalty in penalty units and imprisonment (s 20). The actual monetary equivalents will vary with the penalty unit value in force, which the republication preface anchors to $160 per unit for individuals and $810 for corporations as at the republication date.

Powers of Attorney Act 2006. The Act repeatedly signals that concepts of decision-making capacity and definitions for attorneys, health care matters, and medical research matter are to be taken from the Powers of Attorney Act 2006 (s 3 dictionary signposts and s 19 cross-references). The operation of health directions vis-a-vis enduring powers of attorney is governed by s 19, which requires attorneys to comply with a health direction when the instruments are consistent, and sets the temporal rule when instruments conflict: the later instrument prevails (s 19(2)-(3)). The ACAT can declare consistency or inconsistency on application by an attorney (s 19(4)). The Act also uses the Powers of Attorney Act’s definitions of “decision-making capacity” (s 3, dictionary) and refers to the Powers of Attorney Act 2006, s 41A for the definitions of low-risk research and medical research (s 18(4)).

Guardianship and Management of Property Act 1991. The Act bars persons who have a guardian appointed under the Guardianship and Management of Property Act 1991 from making a health direction (s 7(3)(a)). It further provides that if a doctor declares a person has impaired decision-making capacity, and a guardian is appointed or a health attorney is asked to consent, the guardian or health attorney must act consistently with the health direction, subject to the reasonableness exception for health attorneys (s 18(1)-(3)). The Act cross-references the guardianship Act’s provisions that protect a health attorney from civil and criminal actions for consent decisions given in good faith (s 18 note referring to Guardianship and Management of Property Act 1991, s 32K).

Aged Care Act 2024 (Cwlth) and definitions. The 2025 amendment history references the Aged Care Act 2024 (Cwlth) in relation to the definition of residential care home used in s 13 (endnotes and s 13(3) definitions). The Act’s s 13(3) defines “residential care home” as a residential care home under the Aged Care Act 2024 (Cwlth), thereby linking ACT obligations to Commonwealth definitions and potentially importing Commonwealth regulatory definitions and standards where they apply.

Clinical and professional regulation. The Act explicitly states that the withholding or withdrawing of treatment in reliance on a decision that the clinician honestly believes complies with the Act is not a breach of professional etiquette, ethics, or a rule of professional conduct (s 16(2)). That interacts with professional regulatory schemes that govern registration, discipline and professional standards, by providing a statutory defence to professional complaints where the clinician’s conduct meets the statutory test; however, professional regulators retain their rules and investigative powers, and may still examine whether conduct met the Act’s “honest” and “reasonable grounds” standard.

Tribunal and court interfaces. Where there is a conflict between instruments or a question about consistency, an attorney may apply to the ACAT for a declaration (s 19(4)). Common law remedies and obligations are not displaced except where expressly stated; the Act declares it does not affect any right under other territory law to refuse medical treatment (s 6(1)). The preservation clause (s 6(3)) also maintains duties of health professionals to advise and assist and to provide medical treatment other than the particular treatment refused or withdrawn.

Evidence and criminal law. The criminal offence in s 20 interacts with general criminal law and evidentiary rules. Prosecutors will need to establish dishonesty and inducement elements under general criminal law principles; the Act’s text provides the substantive offence but not the procedural detail, so enforcement will rely on existing criminal procedure.

Forms and regulations. The Minister may approve forms that must be used when approved (s 21(2)). Regulations may further define or implement procedural, evidentiary or compliance requirements (s 22). Those subordinate instruments will determine how the Act interfaces in practice with administrative operation, record-keeping, and facility accreditation requirements.

Palliative care exception. The Act expressly does not apply to palliative care (s 6(2)), and defines palliative care in the dictionary to include provision of reasonable medical and nursing procedures for relief of pain and suffering, and reasonable provision of food and water. This carve-out interacts with other laws and clinical obligations governing end-of-life care and may produce interpretive questions about the boundary between palliative measures and the medical treatments to which a health direction might apply.

Legislative timeline in the republication. The Act was originally notified as the Medical Treatment (Health Directions) Act 2006, with main sections commencing 29 November 2006 and the remainder commencing 30 May 2007 (legislation history). The republication includes later amendments. Two amendments recorded in the endnotes are of particular note.

Powers of Attorney Amendment Act 2016. The Act was amended by the Powers of Attorney Amendment Act 2016 (A2016-10). The endnotes state that s 18 (Effect of health directions on later guardian or health attorney) and s 19 (Relationship between health directions and enduring powers of attorney) were substituted by A2016-10 amdt 1.30. The 2016 amendment therefore reworked the relationship between health directions and attorneys/guardians, which is now reflected in the current text (ss 18-19).

Justice and Community Safety Legislation Amendment Act 2025 (No 3). The Act was amended by the Justice and Community Safety Legislation Amendment Act 2025 (No 3) (A2025-22). The endnotes indicate that s 13 (Notification of patients making or revoking health direction) was amended (A2025-22 amdt 1.5) and that some definitions used in earlier versions were omitted or moved (dictionary amendments noted in endnotes). The 2025 amendment also references consequential interaction with the Aged Care Act 2024 (Cwlth), with sch 1 pt 1.3 commencing 1 November 2025. The republication is effective 1 November 2025 and includes these amendments.

Editorial republication notes. The Parliamentary Counsel’s Office prepared this republication as an authorised republication under the Legislation Act 2001, part 11.3, which allows certain editorial amendments and formal changes (republication preface). The endnotes include tables of earlier republications and record the dates of notifications and commencements. The republication preface also states the penalty unit values at the republication date.

What changed mechanically. The 2016 substitution of ss 18-19 re-specified the legal priority and operational rules where health directions intersect with guardians and enduring powers of attorney. The 2025 amendments modified s 13 and the definitions relevant to health care facilities and residential care home references, aligning the Act’s definitions with the Commonwealth Aged Care Act 2024 for the purposes of s 13. The republication shows omission notes for definitions in the endnotes; the operative text in s 13 provides definitions for “health care facility”, “hospital”, “residential care home” and “residential disability care facility” within the section rather than the dictionary.

Administrative instruments. The Act contemplates that approved forms and regulations will be made (ss 21-22). Any future instruments will appear as notifiable instruments and will themselves have commencement and amendment histories recorded in the legislation register.

Scope of recorded amendments. The endnotes record the principal amendments and the commencement dates; the reader should consult the legislation register for any uncommenced amendments or subsequent modifications beyond the republication date. The republication includes amendments made under the Legislation Act 2001, part 11.3 and indicates that uncommenced provisions, if any, would be signposted in the text.

No cases named in the Act. The text of the statute and the republication endnotes do not name any judicial or tribunal decisions that interpret or apply the Act. The Act itself does not catalogue litigation, and the republication does not include a litigation history. Any case law applying these provisions would be found by searching court and tribunal databases rather than the statute book. This republication therefore contains no internally cited case law.

Potential litigious issues suggested by the Act. While the Act itself is silent on past litigation, the statutory structure identifies several predictable dispute areas that would be likely to generate litigation or tribunal applications, and which would be the natural loci for case law development:

• capacity assessments and the reasonable grounds test. Sections 11 and 12 require health professionals to form beliefs, on reasonable grounds, about a person’s understanding and the compliance of a direction with the Act. Disputes are likely over what constitutes “reasonable grounds” for a given professional decision and may generate judicial review, negligence claims, or tribunal proceedings.

• evidentiary disputes over non-written directions. Because the Act allows oral and other non-written directions but requires witnessing by two health professionals for non-written directions (s 9(1)), litigation could arise over whether the witnessing requirement was met, whether the non-written direction accurately records the patient’s wishes, and timing issues (e.g. whether a later revocation occurred before treatment was withdrawn).

• conflicts between health directions and enduring powers of attorney. The Act provides a mechanism for attorneys to seek a declaration from the ACAT as to consistency (s 19(4)). Litigation in the tribunal or higher courts is likely where competing instruments claim primacy or where the temporal rule in s 19(3) is contested.

• reasonableness exception for health attorneys. Section 18(3) allows a health attorney not to act consistently with a health direction if it is not reasonable to do so. The boundaries of that reasonableness exception are ripe for interpretation and dispute.

• application of the palliative care carve-out. Because the Act does not apply to palliative care (s 6(2)), litigated disputes could centre on whether a measure is palliative or a medical treatment to which a health direction applies.

No statutory private right to prosecutorial enforcement for procedural breaches. The Act creates one criminal offence (s 20) and protects clinicians from liability under certain circumstances (ss 15-16). The Act does not, however, create explicit private rights of action for many compliance failures; civil claims would proceed under general law, clinical negligence frameworks, or professional regulatory processes.

Tribunal jurisdiction anticipated in the text. The Act explicitly anticipates the ACAT’s role in declaring consistency or inconsistency between instruments (s 19(4)), signalling that at least some disputes are intended to be resolved administratively. This provision will be a likely starting point for contested matters involving attorneys.

Empirical absence. Because the republication does not provide cases, practitioners must check current tribunal and court databases to identify decisions that interpret ss 11-19, and to see how courts treat the Act’s standards such as “reasonable grounds”, “clearly express”, and the interplay with enduring powers and guardianship.

Oral directions are valid, but evidence hurdles are higher. The Act permits health directions in writing, orally or “in any other way” (s 7(2)). However, non-written directions are only valid if witnessed by two health professionals present at the same time, one being a doctor (s 9(1)). Practitioners should note that while the Act makes oral directions possible, proving their content and timing in a dispute is harder than for a properly executed written direction; this increases evidentiary risk and practical uncertainty for clinicians and facilities.

Complex witness rules for written directions. Written health directions have a three-part formal witness structure: the maker or a directed signatory must sign, two witnesses must sign, and each witness must sign in the presence of the other witness and the maker (s 8). These requirements are strict and failure to comply renders the written direction invalid per s 8’s opening sentence. Drafting advisers and clerical staff should ensure forms and witnessing procedures precisely follow s 8 or any approved form required by s 21.

Revocation can be informal, but must be clear and communicated. A revocation may be made “clearly expressing to a health professional or someone else a decision to revoke the direction” and may be in writing, orally or any other way (s 10). The Act’s “clearly express or indicate” phrasing is functional rather than formal; in practice, clinicians and facilities will need processes to capture and document informal revocations to avoid disputes over whether a revocation occurred and when.

Clinician discretion is high, and the “reasonable grounds” standard is the operative test. Health professionals must believe, on reasonable grounds, that directions comply with the Act, that the maker had capacity and did not revoke the direction, and that, where the maker had capacity at the time of making the direction, the maker understood and weighed the alternatives (ss 11-12). The Act places the burden of assessment on clinicians, who must document their steps. The statutory protections in ss 15-16 hinge on the clinician acting honestly and on reasonable grounds; poor documentation or failure to follow s 11 steps weakens reliance on those protections.

Palliative care carve-out may create grey areas. The Act does not apply to palliative care (s 6(2)), and palliative care is defined to include reasonable medical and nursing procedures for relief of pain, suffering and discomfort, and reasonable provision of food and water (dictionary). Where the line between palliative measures and other medical interventions is contested, clinicians and facilities may face disputes about whether a health direction applies to an offered procedure.

Conflicts between instruments depend on timing. The Act’s rule for conflict between health directions and enduring powers of attorney is chronological: the later instrument generally prevails (s 19(3)). Practitioners must carefully verify dates and the maker’s capacity at the time each instrument was executed. ACAT declarations are available but require application by an attorney (s 19(4)), leaving third parties to seek other remedies.

Notification and recordkeeping obligations are operational burdens. Section 13 requires persons who become aware that a patient in a health care facility has made or revoked a health direction to tell the person in charge and provide the circumstances in which it was made or revoked. Section 14 requires the person in charge to take reasonable steps to ensure a copy or note is placed in the patient file. Facilities without robust intake and records processes risk non-compliance, and the Act does not set out enforcement fines for these duties, leaving compliance largely to governance and accreditation regimes.

Immunity is not absolute. Sections 15 and 16 protect clinicians from civil or criminal liability when they act honestly and reasonably, and protect against professional sanction where they act honestly in reliance on a belief that a decision complies with the Act. Those defences do not protect conduct that is dishonest, reckless, grossly negligent, or otherwise falls outside the statutory standard.

Health attorneys have a reasonableness escape hatch. Section 18(3) allows a health attorney not to act consistently with a health direction if it is not reasonable to do so, listing urgency and lack of awareness after reasonable enquiries as examples. Attorneys must be able to justify departures under reasonableness; otherwise they may face tribunal scrutiny or liability under guardianship law.

Criminal offence limited and focussed. The only crime created by the Act is dishonest inducement to make or revoke a direction (s 20). There is no offence in the Act for failing to comply with procedural duties such as notification or file placement, nor for failing to follow s 11 steps; these matters are left to civil, professional and tribunal processes.

Approved forms may be mandatory. If the Minister approves a form for a particular purpose, that form must be used (s 21(2)). Practitioners should confirm whether approved forms exist and ensure they use them; otherwise, a direction could be invalidated on procedural grounds.

Inter-jurisdictional and federal overlaps. The Act references the Aged Care Act 2024 (Cwlth) for residential care home definitions in s 13(3) and the 2025 amendments reflect this connection (endnotes). Practitioners in aged care contexts should consider Commonwealth rules and definitions when implementing the Act’s facility-based duties.

For people making a health direction.

• Consider using a written direction that complies with s 8. Ensure the maker signs or directs another to sign in their presence, arrange for two witnesses to sign, and ensure each witness signs in the presence of the other witness and the maker (s 8). Where a Minister-approved form exists, use it (s 21).

• If making an oral or other non-written direction, ensure two health professionals, one of whom is a doctor, are present at the same time to witness the direction (s 9(1)). Record witness names, times and the content of the direction contemporaneously.

• Ensure decision-making capacity at the time of making the direction because the Act bars persons with impaired capacity or those with guardians from making health directions (s 7(3)). Capacity is defined in the Powers of Attorney Act 2006, s 9(1) (s 3 dictionary).

• If intending to revoke, clearly express or indicate the revocation to a health professional or someone else. A revocation may be oral, written, or in any other way, but clarity and contemporaneous documentation reduce future disputes (s 10).

For health professionals.

• Before complying with a health direction given by a person with decision-making capacity, take all reasonable steps to inform the person of the nature of the illness, any alternative treatments available, the consequences of available treatments and the consequences of remaining untreated (s 11(2)).

• Form a documented belief, on reasonable grounds, that the person understood the information, weighed options, and confirmed the decision to refuse or withdraw treatment (s 11(3)). Contemporaneous notes of discussions, information provided, and the person’s responses are essential.

• Do not withhold or withdraw treatment unless you believe, on reasonable grounds, the direction complies with the Act, and the person has not revoked or changed the direction since making it (s 12). If unsure, do not proceed absent further steps to verify (s 12).

• In the case of non-written directions, ensure two health professionals (including a doctor) witness the direction at the same time (s 9(1)). If treating an incapacitated patient who has a prior health direction, verify whether a guardian or health attorney has been appointed and whether the attorney or guardian is required to act consistently with the health direction per s 18.

• If acting on a direction, document the factual and clinical basis for your belief that the direction complies with the Act and that the person had capacity and understanding. The statutory protections in ss 15-16 depend on honesty and reasonable grounds.

For persons in charge of health care facilities.

• Implement intake and recordkeeping procedures so that staff who become aware a patient has made or revoked a health direction notify the person in charge and provide the circumstances (s 13). Train staff on what constitutes a health direction and on the witnessing requirement for non-written directions.

• Take reasonable steps to place a copy of the health direction or revocation in the patient’s file, or if that is not possible, place a note describing the direction or revocation (s 14). Document the steps taken and the reasons if a copy could not be obtained.

• Ensure facility policies align with the Act’s definitions of health care facility, hospital, residential care home and residential disability care facility as set out in s 13(3), and with any approved forms under s 21.

For guardians and attorneys.

• If acting as a guardian or health attorney after a health direction was made, consult the health direction and act consistently with it except where it is not reasonable to do so (s 18(2)-(3)).

• Keep records of enquiries made to locate health directions. The Act’s examples indicate a health attorney may be justified in not following a direction where they do not have time to consult the direction in urgent circumstances, or where they are unaware of its existence after reasonable enquiries (s 18(3) examples).

• If there is uncertainty about whether a health direction is consistent with an enduring power of attorney, consider applying to the ACAT for a declaration under s 19(4).

Administrative and governance steps for all institutions.

• Review forms and determine whether Minister-approved forms exist; if so, adopt and deploy them (s 21). Ensure staff are trained in witnessing, signing and filing protocols consistent with the Act.

• Build documentation templates to capture the s 11 information exchange: diagnosis, alternatives, consequences of treatment and non-treatment, and the maker’s understanding and reasoned confirmation. Store those records in the patient file as part of the facility’s medical record.

• Create escalation procedures for situations where clinicians are unsure about compliance with the Act, capacity assessments, or whether a direction has been revoked. Because the Act requires clinicians not to proceed when unsure (s 12), escalation and rapid access to senior clinicians or legal advice reduces delay and operational risk.

• Integrate the Act’s requirements with your professional indemnity insurer obligations, clinical governance frameworks, and accreditation standards. Although the Act provides statutory protections for clinicians acting honestly and reasonably (ss 15-16), insurers and regulators will still examine whether practice met the statutory standard.

• For residential aged care operators, confirm how the facility’s Commonwealth regulatory obligations under the Aged Care Act 2024 interact with s 13’s definitions and the Act’s notification and filing requirements.

Risk management and dispute avoidance.

• Prioritise written health directions executed in compliance with s 8 and, where available, use approved forms. Encourage patients to record their wishes in durable, witnessed, dated documents.

• Regularly audit patient files to confirm the presence of health directions and to confirm that staff follow notification procedures. Maintain a clear chain of custody and timestamps for revocations and communications.

• Where conflict arises between instruments, consider early tribunal application under s 19(4) for declaratory relief rather than waiting for a full adversarial dispute.

• Train clinicians on the Act’s “reasonable grounds” standards and on documenting the steps taken to inform and confirm a patient’s decision to refuse treatment.

By following the statutory steps for execution and revocation, documenting capacity assessments and information exchanges, maintaining rigorous facility recordkeeping and notification systems, and using tribunal avenues for declaratory relief where instruments conflict, the practical compliance risks created by the Act can be managed.