Legislative Assembly for the ACT: 2009 Week 12 Hansard (Thursday, 15 October 2009) . . Page.. 4661 ..
Mr Corbell: The answer to the member’s question is as follows:
The legislative purpose of an advance directive is to protect the right of a patient to refuse unwanted medical treatment, and to ensure that patients receive effective, appropriate and reasonable relief from pain and suffering.
In the ACT, the Medical Treatment (Health Directions) Act 2007 provides that a person may issue an advance directive to refuse medical treatment or to have medical treatment withdrawn. The direction may apply to all medical treatment generally, or to a particular kind of medical treatment. However, a direction made under the Act does not apply to the administration of palliative care.
The ACT Act is more limited than similar legislation in some other jurisdictions, in that a direction under the ACT Act only operates while the person continues to have full decision-making capacity.
People for whom a guardian is appointed under the Guardianship and Management of Property Act 1991, or who have impaired decision making capacity, are not able to give a health direction.
The ACT does not currently have legislation that enables a person to make a direction which would dictate how they are to be treated should they lose their capacity to make decisions.
However, a guardian appointed to a patient who has lost capacity must consent to medical treatment in a way consistent with an existing direction made by the patient under the Act before he or she lost capacity.
Mental health advance directives are encompassed by the current review of mental health legislation. This review aims to address and broaden the recognition of advance directives in the ACT by expanding the scope of the Medical Treatment (Health Directions) Act 2006. In supporting the inclusion of advance directive provisions in revised mental health legislation, the review offers an opportunity to consider the application of advance directive mechanisms in closer detail than has yet occurred in Australia.
The ACT review benefits from recent reviews in mental health legislation in other states and the Northern Territory, and from the broader general discussion about advance directives that has largely been generated by the advocacy of community based organisations.
At this stage, there is no advice from the Review Advisory Committee (which comprises a range of stakeholders and directly advises the Minister) as to which model of advance directive would be supported to government.
Mental health advanced directives are encompassed by the current review of mental health legislation. At present, the review is scheduled to be completed by the end of 2011. The ACT Government is committed to the recognition of formal legal documents, such as advance health directives, as it is important and necessary, both within the ACT and nationally.