Health Care Decision Making Act 2023 NT: The New Hierarchy Explained

What Changed on 1 July 2024

The Health Care Decision Making Act 2023 commenced on 1 July 2024, creating the Northern Territory's first standalone framework for medical consent when an adult lacks decision-making capacity. Before this Act, healthcare consent for incapacitated adults was spread across the Advance Personal Planning Act 2013 and the Guardianship of Adults Act 2016, with no unified hierarchy telling clinicians exactly who to consult and in what order.

The 2023 Act did not replace the Advance Personal Plan. Your APP is still the planning instrument — the document where you record your wishes and appoint decision-makers. What the 2023 Act did was establish a clear, mandatory pecking order for healthcare decisions when no APP exists, or when the APP does not cover the specific treatment question at hand.

The Statutory Hierarchy

When someone in the NT loses capacity and needs medical treatment, clinicians must follow this hierarchy to find an appropriate decision-maker:

1. Appointed APP decision-maker with healthcare authority
2. NTCAT-appointed guardian with explicit healthcare authority
3. A relative recognised under Aboriginal or other customary law or tradition as the appropriate spokesperson
4. Spouse or de facto partner with a close and continuing relationship
5. A non-commercial primary carer
6. Adult children with a close and continuing relationship
7. Parents with a close and continuing relationship
8. Siblings with a close and continuing relationship
9. Close friends with a close and continuing relationship
10. The Public Guardian as the default decision-maker of last resort

The clinician starts at the top and works down. The first available, willing, and able person in the hierarchy makes the decision.

Why Position 3 Matters

The most significant feature of this Act is position 3 — a relative recognised by Aboriginal or other customary law or tradition. This gives First Nations kinship structures statutory priority over standard family relationships.

In practical terms, this means that in remote communities where formal APPs are uncommon, a relative recognised under Aboriginal or other customary law or tradition can make healthcare decisions without the family needing to apply to NTCAT for a guardianship order. Before this Act, the process for remote Indigenous families often involved delay-ridden tribunal applications while their relative needed urgent care.

The customary law recognition applies regardless of whether the person in question has formally registered a relationship or kinship tie. The clinician assesses this by consulting with the patient's community and family.

What Happens When People Disagree

The hierarchy assumes a clear chain. In practice, family disagreements are common — adult children may disagree about treatment, or a de facto partner and the patient's parents may have different views.

When multiple people at the same level disagree, the 2023 Act requires the healthcare provider to escalate the dispute to NTCAT. The tribunal can hear emergency applications within days for critical medical matters, and filing is free for applications under this Act.

If a decision-maker at a higher level in the hierarchy is available but appears to be acting against the patient's interests, any interested person — another family member, a healthcare provider, or the Public Guardian — can apply to NTCAT for review.

Advance Consent Decisions Override Everything

One critical rule: a valid Advance Consent Decision in an APP overrides the entire hierarchy. If the patient recorded a binding refusal of a specific treatment, no one in the hierarchy can consent to that treatment. The refusal stands.

This is the most powerful element of the APP framework and why recording specific Advance Consent Decisions matters so much. Without them, the hierarchy decides. With them, your documented wishes control the outcome.

Implications for Families

If you are the adult child of an aging parent in the NT, this Act changes your planning calculus. Without an APP, the hierarchy determines who makes decisions — and it may not be the person your parent would have chosen.

A spouse or de facto partner with a close and continuing relationship ranks above adult children. A non-commercial carer can rank above adult children, parents, and siblings, but location alone does not decide the ranking; the required relationship is assessed in context. These priority rules often surprise families during a crisis.

The solution is straightforward: execute an APP that names the preferred decision-maker. That person goes to position 1 in the hierarchy, above everyone else.

Getting It Right

Our Northern Territory Advance Directive & Living Will Kit includes the complete statutory hierarchy as a reference card, plus step-by-step guidance for appointing decision-makers, recording binding Advance Consent Decisions, and navigating NTCAT if a dispute arises.

See more Northern Territory guides →