MEDICAL TREATMENT ACT 1994 (REPEALED) - TABLE OF PROVISIONS PART 1--PRELIMINARY 1. Short title 3. Definitions for Act 4. Objectives of Act 5. Other legal rights not affected PART 2--REFUSAL OF TREATMENT Division 2.1--Directions 6. Making of direction 7. Written directions--requirements 8. Other directions--requirements 9. Revocation of direction 11. Competent person to be informed of alternatives etc 12. Health professional not to proceed if in doubt Division 2.2--Powers of attorney 13. Granting powers of attorney 14. Circumstances in which power may be exercised 15. Power of attorney--revocation 16. Conditions on exercise of power 17. Health professional to ensure attorney's decision is informed PART 3--GENERAL PROVISIONS 18. Effect of direction or power of attorney on other instruments 19. Direction obtained by fraud etc 20. Copies or notification of decisions 21. Health professional not liable for certain decisions 22. Protection of health professionals relying on decision 23. Adequate pain relief 24. Regulation-making power SCHEDULE 1 ENDNOTES MEDICAL TREATMENT ACT 1994 (REPEALED) - LONG TITLE An Act to make provision with respect to the withholding or withdrawal of medical treatment, and for related purposes MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 1 Short title This Act may be cited as the Medical Treatment Act 1994. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 3 Definitions for Act In this Act: Note A definition applies except so far as the contrary intention appears (see Legislation Act 2001, s 155). "direction" means a direction made in accordance with division 2.1. "health professional" means a doctor or nurse. "medical treatment" means-- (a) the carrying out of an operation; or (b) the administration of a drug; or (c) the carrying out of any other medical procedure. "palliative care" includes-- (a) the provision of reasonable medical and nursing procedures for the relief of pain, suffering and discomfort; and (b) the reasonable provision of food and water. "power of attorney" means a power of attorney granted in accordance with division 2.2. "superintendent", in relation to a hospital, hospice or nursing home, means a person who is responsible for the day-to-day running of the hospital, hospice or nursing home. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 4 Objectives of Act The objectives of this Act are-- (a) to protect the right of patients to refuse unwanted medical treatment; and (b) to ensure the right of patients to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 5 Other legal rights not affected (1) This Act does not affect any right of a person under any other Territory law to refuse medical treatment. (2) This Act does not apply to palliative care and does not affect any right, power or duty that a health professional or any other person has in relation to palliative care. (3) The refusal or withdrawal of medical treatment under this Act does not limit any duty of a health professional or other person-- (a) to advise and inform the patient or the patient's agent or guardian; or (b) to provide medical treatment other than the medical treatment that has been refused or withdrawn. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 6 Making of direction A person who is of sound mind and has attained the age of 18 years may make a direction in writing, orally or in any other way in which the person can communicate to refuse, or for the withdrawal of, medical treatment-- (a) generally; or (b) of a particular kind. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 7 Written directions--requirements Subject to this Act, a written direction is not valid unless-- (a) it is in accordance with schedule 1, form 1; and (b) it is signed by the maker of the direction or by another person in the presence of and at the direction of the person making the direction; and (c) the signature is witnessed by 2 persons; and (d) the witnesses each sign the direction in the presence of each other and the person making the direction. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 8 Other directions--requirements Subject to sections 5 and 11, a direction other than a written direction is not valid unless it is witnessed by 2 health professionals (1 of whom shall be a medical practitioner) present at the same time. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 9 Revocation of direction (1) A direction-- (a) to refuse; or (b) for the withdrawal of; medical treatment may be revoked by the person who gave the direction clearly expressing to a health professional or another person a decision to revoke the direction. (2) For subsection (1), a person may clearly express or indicate a decision in writing, orally or in any other way in which the person can communicate. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 11 Competent person to be informed of alternatives etc (1) Before complying with a direction in respect of a person who is still competent to make a rational judgment, the health professional shall take all reasonable steps to ensure that the person has been informed about-- (a) the nature of his or her illness; and (b) any alternative forms of treatment that may be available; and (c) the consequences of those forms of treatment; and (d) the consequences of remaining untreated. (2) A health professional shall not give effect to the direction unless the health professional believes on reasonable grounds that the person has-- (a) understood the information provided under subsection (1); and (b) weighed the various options and, as a result of this consideration, affirms the decision-- (i) to refuse medical treatment; or (ii) to have medical treatment withdrawn. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 12 Health professional not to proceed if in doubt A health professional shall not withhold or withdraw medical treatment from a person in accordance with a direction unless the health professional believes on reasonable grounds that-- (a) the direction complies with this Act; and (b) the person has not revoked the direction or in any way changed his or her decision since making the direction. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 13 Granting powers of attorney (1) A person who is of sound mind and has attained the age of 18 years (in this division called the grantor) may, by instrument in accordance with schedule 1, form 2, confer on another person (in this division called the grantee) the power to consent, subject to the instrument, on behalf of the grantor to the withholding or withdrawal of medical treatment in the event that the grantor becomes incapacitated. (2) An instrument under subsection (1) is not valid unless-- (a) the grantee has attained the age of 18 years; and (b) it is signed by the grantor or by another person in the presence of and at the direction of the grantor; and (c) that signature is witnessed by 2 persons, neither of whom is the grantee, or a relative of the grantee; and (d) the grantee signs the instrument to indicate acceptance. (3) A power of attorney granted in accordance with this section does not lapse by reason only of the incapacity of the grantor. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 14 Circumstances in which power may be exercised A grantee is not entitled to exercise a power conferred on him or her under the power of attorney granted under section 13 unless the grantor is declared by a medical practitioner to be incapacitated. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 15 Power of attorney--revocation Despite any rule of law to the contrary, a power of attorney is not revoked on the appointment of a guardian under the Guardianship and Management of Property Act 1991 in respect of the grantor, but is revoked in any other way in which a power of attorney under the Powers of Attorney Act 1956 may be revoked. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 16 Conditions on exercise of power (1) Subject to subsection (2), a grantee shall not request the withholding or withdrawal of medical treatment from the grantor unless-- (a) the grantee has consulted a medical practitioner about-- (i) the nature of the grantor's illness; and (ii) any alternative forms of treatment that may be available to the grantor; and (iii) the consequences to the grantor of remaining untreated; and (b) the grantee believes on reasonable grounds that if the grantor-- (i) were capable of making a rational judgment; and (ii) were to give serious consideration to his or her own health and wellbeing; the grantor would request the withholding or withdrawal of medical treatment from himself or herself. (2) If the grantee is-- (a) aware the grantor has made a direction; and (b) not aware that the direction has been revoked; the grantee may request the withholding or withdrawal of medical treatment from the grantor in accordance with the direction. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 17 Health professional to ensure attorney's decision is informed etc A health professional shall not comply with the request of a grantee to withhold or withdraw medical treatment from the grantor unless satisfied that-- (a) the power of attorney under which the grantee's request is made complies with this Act; and (b) the grantee-- (i) understands the information given under section 16 (1); and (ii) has weighed the various options and, as a result, affirms his or her request. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 18 Effect of direction or power of attorney on other instruments (1) Where-- (a) a person has made a direction or granted a power of attorney; and (b) a medical practitioner declares that the person has become incapacitated; any power of a guardian to consent to medical treatment, where that guardian was appointed for the person under the Guardianship and Management of Property Act 1991 after the direction was made or the power of attorney was granted shall be exercised in a manner that is consistent with the direction or power of attorney. (2) A person for whom a guardian is appointed under the Guardianship and Management of Property Act 1991 is deemed not to have the capacity to make a direction or grant a power of attorney. (3) Where a person creates an enduring power of attorney under the Powers of Attorney Act 1956, any direction made or power of attorney granted by the person under this Act that is in effect shall be taken to be revoked. (4) Where a person makes a direction or grants a power of attorney under this Act, any enduring power of attorney created by the person under the Powers of Attorney Act 1956 that is in effect shall, to the extent that it applies to the withholding or withdrawal of medical treatment, be taken to be revoked but otherwise remains in effect. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 19 Direction obtained by fraud etc (1) A person who-- (a) by any deception or fraud procures or obtains; or (b) uses violence, threats, intimidation or otherwise hinders or interferes with another person for the purpose of procuring or obtaining; from a person (whether directly or indirectly) a direction or power of attorney commits an offence. Maximum penalty: imprisonment for 5 years (2) Any direction or power of attorney so procured or obtained shall be void. (3) This section is in addition to any other penalty in respect of the deception, fraud, misstatement or undue influence under any other law in force in the ACT. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 20 Copies or notification of decisions (1) A health professional or other person who becomes aware that a patient in a hospital, hospice or nursing home-- (a) has made a direction or granted a power of attorney; or (b) having made the direction or granted the power of attorney, has revoked it; shall notify the superintendent of that fact and the circumstances in which the direction or power of attorney was made, granted or revoked. (2) A superintendent who is notified under subsection (1) shall take reasonable steps to ensure that-- (a) a copy of the direction, power of attorney or revocation; or (b) if it is not possible to obtain a copy of the direction, power of attorney or revocation--a notation of the direction, power of attorney or revocation; is placed with the patient's file. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 21 Health professional not liable for certain decisions A health professional incurs no liability for a decision made by him or her in good faith and without negligence as to whether a person-- (a) revoked, or intended to revoke, a direction or power of attorney; or (b) was, or was not, at the time of making a direction or granting a power of attorney, capable of understanding the nature and consequences of the direction or power of attorney. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 22 Protection of health professionals relying on decision A health professional or a person acting under the direction of a health professional who, in good faith and in reliance on a decision that he or she believes on reasonable grounds complies with this Act, withholds or withdraws medical treatment from a person is not-- (a) guilty of unsatisfactory professional conduct under any Territory law; or (b) guilty of an offence against any Territory law; or (c) liable in any civil proceedings; in connection with the withholding or withdrawal of medical treatment. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 23 Adequate pain relief (1) Notwithstanding the provisions of any other Territory law, a patient under the care of a health professional has a right to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances. (2) In providing relief from pain and suffering to a patient, a health professional shall pay due regard to the patient's account of his or her level of pain and suffering. MEDICAL TREATMENT ACT 1994 (REPEALED) - SECT 24 Regulation-making power The Executive may make regulations for this Act. Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001. MEDICAL TREATMENT ACT 1994 (REPEALED) - SCHEDULE 1 Schedule 1 (see s 7) Form 1 Written direction under Medical Treatment Act 1994 IMPORTANT NOTICE: If you have previously given a power of attorney under the Powers of Attorney Act 1956, that power might be affected by filling out this form. You should note that the power to make decisions relating to the withholding or withdrawal of medical treatment will now be exercised according to your instructions on this form and not the form you previously filled in under the Powers of Attorney Act 1956. If you give a power of attorney under the Powers of Attorney Act 1956 after you have filled in this form, this form will no longer have any effect. 1. I, (name) of (address) DIRECT that-- *(a) medical treatment generally be withheld or withdrawn; or *(b) medical treatment, being (specify particular kind of medical treatment), be withheld or withdrawn. 2. I REVOKE all other directions previously made by me under the Medical Treatment Act 1994. 3. I CERTIFY that this direction is made voluntarily and without inducement or compulsion. 4. I CERTIFY that I am of sound mind and have attained the age of 18 years. Dated: Signature of person making the direction (or of another person signing in the presence of and by the direction of the maker of the direction) Dated: Signature of witness Dated: Signature of witness *Delete whichever is not applicable Form 2 Power of attorney under Medical Treatment Act 1994 (see s 13) IMPORTANT NOTICE: This form will allow your chosen attorney (who must be over 18) to make certain medical decisions for you if you become incapable of making those decisions yourself. This form allows your attorney to make decisions about withholding or withdrawing medical treatment. You can provide that this is to include medical treatment generally, or you can specify a particular kind of treatment which you wish to be withheld or withdrawn. To create a power of attorney this form must be signed and dated either by you or by another person you have asked to sign and date the form for you. If you ask another person to sign and date this form for you, they should do so in your presence. You must also have two (2) witnesses sign the form. The person to whom you are giving the power of attorney, or any of that person's relatives, cannot be witnesses. If you have previously given a power of attorney under the Powers of Attorney Act 1956, that power might be affected by filling out this form. You should note that the power to make decisions relating to the withholding or withdrawal of medical treatment will now be exercised according to your instructions on this form and not the form you previously filled in under the Powers of Attorney Act 1956. If you give a power of attorney under the Powers of Attorney Act 1956 after you have filled in this form, this form will no longer have any effect. Before signing this form, you should read it carefully. 1. I, (name of grantor) of (address) APPOINT (name of grantee) of (address) to be my attorney for the purposes of the Medical Treatment Act 1994. 2. I AUTHORISE my attorney, if I become incapacitated, to request that-- *(a) medical treatment generally be withheld or withdrawn; or *(b) medical treatment, being (specify particular kind of medical treatment), be withheld or withdrawn; if he or she believes on reasonable grounds that, if I were capable of making a rational judgment and were to give serious consideration to my health and wellbeing, I would make that request. 3. I REVOKE all other powers of attorney previously granted by me under the Medical Treatment Act 1994. 4. I CERTIFY that I am of sound mind and have attained the age of 18 years. Dated: Signature of person giving the power (or of another person signing in the presence of and by the direction of the person giving the power) Dated: Signature of witness [not related to the grantee] Dated: Signature of witness [not related to the grantee] ACCEPTANCE BY GRANTEE I have read this power of attorney. I understand that by signing this document, I take on the responsibility of exercising the powers which I have been given by the document. I also understand that I must exercise these powers in accordance with the Medical Treatment Act 1994. Dated: Signature of grantee *Delete whichever is not applicable MEDICAL TREATMENT ACT 1994 (REPEALED) - NOTES Endnotes Endnotes 1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes. Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel's Office. Uncommenced amending laws and expiries are listed in the legislation history and the amendment history. These details are underlined. Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote. If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. The endnotes also include a table of earlier republications. 2 Abbreviation key am = amended ord = ordinance amdt = amendment orig = original ch = chapter par = paragraph/subparagraph def = definition pres = present dict = dictionary prev = previous disallowed = disallowed by the Legislative (prev...) = previously Assembly pt = part div = division r = rule/subrule exp = expires/expired renum = renumbered Gaz = gazette reloc = relocated hdg = heading R[X] = Republication No IA = Interpretation Act 1967 RI = reissue ins = inserted/added s = section/subsection LA = Legislation Act 2001 sch = schedule LR = legislation register sdiv = subdivision LRA = Legislation (Republication) Act 1996 sub = substituted mod = modified/modification SL = Subordinate Law o = order underlining = whole or part not commenced om = omitted/repealed or to be expired 3 Legislation history Medical Treatment Act 1994 No 72 notified 1 November 1994 (Gaz 1994 No S229) commenced 1 November 1994 (s 2) as amended by Medical Treatment (Amendment) Act 1997 No 76 notified 25 November 1997 (Gaz 1997 No S360) commenced 25 November 1997 (s 2) Legislation (Consequential Amendments) Act 2001 No 44 pt 248 notified 26 July 2001 (Gaz 2001 No 30) s 1, s 2 commenced 26 July 2001 (IA s 10B) pt 248 commenced 12 September 2001 (s 2 and see Gaz 2001 No S65) Health Professionals Legislation Amendment Act 2004 A2004-39 sch 1 pt 1.7 notified LR 8 July 2004s 1, s 2 commenced 8 July 2004 (LA s 75 (1)) sch 1 pt 1.7 commenced 7 July 2005 (s 2 and see Health Professionals Act 2004 A2004-38, s 2 and CN2005-11) as repealed by Medical Treatment (Health Directions) Act 2006 A2006-51 s 23 notified LR 29 November 2006s 1, s 2 commenced 29 November 2006 (LA s 75 (1))s 23 commenced 30 May 2007 (s 2 and see Powers of Attorney Act 2006 A2006-50 (s 2)) 4 Amendment history Commencements 2 om 2001 No 44 amdt 1.2863 Definitions for Acts 3 def health professional sub A2004-39 amdt 1.35 Directionsdiv 2.1 hdg (prev pt 2 div 1 hdg) renum R1 LA Making of directions 6 am 1997 No 76 s 4 Cessation of directions 10 om 1997 No 76 s 5 Powers of attorneydiv 2.2 hdg (prev pt 2 div 2 hdg) renum R1 LA Regulation-making powers 24 sub 2001 No 44 amdt 1.2864 Amendment of Powers of Attorney Act 1956pt 4 hdg om 2001 No 44 amdt 1.2865 Principal Acts 25 om 2001 No 44 amdt 1.2865 Guardianship and consent to medical treatment under enduring power of attorneys 26 om 2001 No 44 amdt 1.2865 Schedules 27 om 2001 No 44 amdt 1.2865 Schedule 1sch 1 (prev sch) am 1997 No 76 s 6 renum R1 LA 5 Earlier republications Some earlier republications were not numbered. The number in column 1 refers to the publication order. Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical. Republication No and date Effective Last amendment made by Republication for R0A22 June 2005 25 Nov 1997-11 Sept 2001 A1997-76 amendments by A1997-76 R121 Feb 2002 21 Feb 2002-6 July 2005 A2001-44 amendments by A2001-44 R27 July 2005 7 July 2005-29 May 2007 A2004-39 amendments by A2004-39 (c) Australian Capital Territory 2007 MEDICAL TREATMENT ACT 1994 (REPEALED) - NOTES Australian Capital Territory A1994-72 Republication No 3 Effective: 30 May 2007 Republication date: 30 May 2007 As repealed by A2006-51 s 23Unauthorised version prepared by ACT Parliamentary Counsel's Office About this republication The republished law This is a republication of the Medical Treatment Act 1994 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)). It also includes any commencement, amendment, repeal or expiry affecting the republished law to 30 May 2007. The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel's Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au): o authorised republications to which the Legislation Act 2001 applies o unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication does not include amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol U appears immediately before the provision heading. The text of the uncommenced provision or amendment appears only in the last endnote. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see Legislation Act 2001, section 95. Penalties The value of a penalty unit for an offence against this republished law at the republication date is-- (a) if the person charged is an individual--$100; or (b) if the person charged is a corporation--$500. Australian Capital Territory Medical Treatment Act 1994 (repealed) Form 1 Written direction under Medical Treatment Act 1994 13 Form 2 Power of attorney under Medical Treatment Act 1994 15 Endnotes Australian Capital Territory Medical Treatment Act 1994 (repealed)