Tasmania

Does Tasmania have both common law Advance Care Directives and statutory Advance Care Directives?

Yes. A person may create both a common law Advance Care Directive that refuses treatment and/or a statutory Advance Care Directive. Both types of Directives are recognised by the law in Tasmania.

The information below applies only to statutory Advance Care Directives. For more information visit Common Law Advance Care Directives.

When will an Advance Care Directive apply?

An Advance Care Directive comes into force as soon as it is witnessed. The Directive will only operate when the person has impaired decision-making ability in relation to a health care decision, and the direction consenting to or refusing health care is clear and unambiguous. This is discussed further below.

A Directive will operate until the earliest of the following occurs:

• it reaches its expiry date (if it has one)
• it is revoked, in the way described below (see Can an Advance Care Directive be varied (changed) or revoked (cancelled)?) or
• the person’s death.

What can an Advance Care Directive cover?

An Advance Care Directive can include directions, values, and preferences about the person’s future health care.

Advance Care Directives have both binding and non-binding sections:

• A clear and unambiguous refusal or withdrawal of particular health care is binding and must be followed.
• All other directions are non-binding although should be complied with as far as is reasonably practicable.

A non-binding provision is a statement of a person’s preferences and values about their future health care. For example, what is important to the person regarding their future health care, what gives the person quality of life, what health care outcomes are acceptable to the person, their preferred places of care and death, cultural and religious beliefs that may impact future health care, or other matters they wish to be taken into account in making decisions about their health care.

A binding provision that is unclear or ambiguous in relation to a particular situation but still indicates a person’s preferences of values in relation to that situation is a non-binding provision.

What cannot be included in an Advance Care Directive?

An Advance Care Directive cannot include provisions that:

• Are unlawful or would require an unlawful act to be performed. This does not include a refusal or withdrawal of health care that results in the necessaries of life not being provided e.g. medicine.
• Refuse mandatory health care (e.g. such as an assessment or treatment authorised under the Mental Health Act 2013 (Tas)).
• If followed, would cause a health practitioner or other person to provide health care that breaches a professional standard or code of conduct, or would be professional misconduct or unprofessional conduct.
• Are void and of no effect under the Act’s Regulations.

What happens if an Advance Care Directive does not provide clear and unambiguous consent?

If the consent or refusal of consent in an Advance Care Directive is not clear and unambiguous, and the person has impaired decision making ability, a health practitioner may ask the person’s authorised decision maker to consent. An authorised decision maker may be:

• a person otherwise authorised to provide consent to health care under the Act,
• the person’s guardian or Enduring Guardian (if they have authority to make the decision), or
• a person responsible.

For more information about guardians and persons responsible visit Tasmania Treatment Decisions.

An authorised decision maker must:

• comply with any binding provisions, and
• as far as is reasonably practicable:
  • comply with any non-binding provisions of the Directive
  • seek to avoid any outcome or intervention that the person would want to avoid (whether stated in the Directive or implied)
  • make health care decisions in a way that is consistent with the principles relating to Directives (set out in s35B of the Act), and
  • make decisions they reasonably believe the person would have made in the circumstances.

Can a child make an Advance Care Directive?

Yes. A child under 18 may make an Advance Care Directive if the child:

• understands what a Directive is and the consequences of giving a Directive, and
• has decision making ability. A child will have this if a registered health practitioner is satisfied that the child is sufficiently mature to make the decision and meets other criteria (discussed at Capacity and consent to medical treatment).

Similar to adults, a child’s Directive can include binding and non-binding provisions. The Directive must also meet the formal requirements discussed below. For a written Advance Care Directive, one of the witnesses must be a registered health practitioner.

What are the formal requirements to make an Advance Care Directive?

A person can make an Advance Care Directive if they:

• have decision making ability,
• understand what an Advance Care Directive is, and
• understand the consequences of giving an Advance Care Directive.

For information about when an adult or child will have decision making ability visit Capacity and consent to medical treatment.

An Advance Care Directive may be made in writing, orally or by another other means that enable the person’s directions, preferences and values to be documented (e.g. through audio visual recording).

The person who made the Directive or others (e.g. their lawyer, another adult on the person’s request, the person’s guardian or person responsible) can apply to the Tasmanian Civil and Administrative Tribunal (the Tribunal) to register the Directive. A Directive is not invalid just because it is not registered.

There are different formal requirements depending on whether the Directive is written or not written.

When will an Advance Care Directive be invalid?

An Advance Care Directive will be invalid if it was not made voluntarily, or it was made as a result of dishonesty, inducement or coercion. It is an offence to:

• dishonestly induce another person to make an Advance Care Directive, or include a provision in a Directive, or
• require a person to make an Advance Care Directive, or include a provision in a Directive, as a precondition to providing a service.

A Directive that does not meet the formal requirements (including the witnessing requirements) will be invalid unless the Tribunal declares that it is valid.

A health practitioner, the Public Guardian, the Tribunal or an authorised decision maker may take into account a Directive that does not meet the formal requirements to determine the person’s directions, preferences and values.

An Advance Care Directive will not be invalid because of any of the following:

• for written directives, the person did not complete a section of the form (unless it is a mandatory section)
• the person was not fully informed about their medical conditions or other circumstances the Directive relates to
• the person did not seek medical, legal, or other professional advice about the Directive
• the Directive contains minor errors e.g. of spelling, grammar, punctuation that do not affect the ability to understand the person’s directions, preferences and values
• the Directive uses informal language rather than medical or technical terms
• the person giving the Directive describes their wishes in general terms rather than specific provisions, or their preferences and values may need to be inferred from the Directive
• provisions in the Directive are based solely on cultural or religious grounds.

Does a person have to receive information about the treatment they are requesting or refusing in an Advance Care Directive?

No, a person does not have to receive any information about the treatment they are requesting or refusing before they make the Directive.

The Act also confirms that a Directive will not be invalid because the person was not fully informed about medical conditions or other circumstances the Directive relates to, or did not seek medical, legal, or other professional advice about the Directive.

Can someone be appointed in an Advance Care Directive to make substitute decisions for the person?

No. However, a person may also want to appoint an Enduring Guardian to make decisions for them about treatment if they no longer have capacity to make decisions for themselves. To do this the person must complete an instrument appointing an enduring guardian.

If a person has an Advance Care Directive which contains a provision that is inconsistent with a direction in an Enduring Guardian document, the Advance Care Directive will take priority. If the person has a guardian appointed under a guardianship order or as an Enduring Guardian, the guardian or Enduring Guardian must take reasonable steps to confirm if the person made a Directive. In making a decision, the guardian or Enduring Guardian must take into account any wishes, directions, preferences and values stated in the person’s Directive.

As discussed above, if a person’s Advance Care Directive is unclear or ambiguous, a health practitioner may ask an authorised decision maker (a person who is authorised to provide consent under the Act, a guardian, an Enduring Guardian, or a person responsible) to consent to or refuse health care for the person.

Can an Advance Care Directive be varied (changed) or revoked (cancelled)?

Yes. A person can revoke (cancel) their Advance Care Directive at any time if they have decision making ability and understand the consequences of revoking it. If they made a written Directive, it may be revoked in writing. If the Directive was not made in writing, the person may revoke it in the same way the Directive was made, or in writing.

If a person revokes their Advance Care Directive, they must take reasonable steps to notify the following people and organisations of the revocation as soon as is reasonably practicable:

• their Enduring Guardian(s)
• any other person or organisation who was given a copy of the Advance Care Directive (e.g. family, friends, hospitals and health professionals)
• if the Directive was registered, the Tribunal.

If a person has decision making ability they may make a new Directive. Where this occurs, any previous Directive made by the person is revoked.

A person’s Directive cannot be varied except by applying to the Tribunal.

If a person has impaired decision making ability and there is reason to believe the person wishes (or may wish) to revoke or vary the Advance Care Directive, the Tribunal has power to do this. A health practitioner caring for the person, the person’s authorised decision maker, or another person with a proper interest in the matter can make an application to the Tribunal for the Directive to be revoked or varied.

The Tribunal may revoke or vary a Directive if it is satisfied that:

• the person who made the Directive wishes to revoke or vary it, and understands the nature and consequences of the revocation or variation, and
• the revocation or variation genuinely reflects the person’s wishes, and it is, in the circumstances, appropriate to revoke or vary the Directive.

Can a health professional decide not to follow an Advance Care Directive?

Before providing health care to a person, health practitioners must make reasonable efforts to find out if a person they reasonably believe has impaired decision making ability for a health care decision has an Advance Care Directive, and to obtain a copy of it.

If the health practitioner reasonably believes a child has made a Directive, they must make reasonable efforts to obtain a copy of the child’s Directive before providing health care to the child.

A health practitioner must:

• comply with a binding provision of an Advance Care Directive (the section which refuses health care, or requests the withdrawal of health care), but there are exceptions to this (detailed below),
• comply with non-binding directions as far as is reasonably practicable,
• as far as is reasonably practicable, avoid any outcome or intervention that the person would want to avoid (whether stated in the Directive or implied), and
• provide the health care in a way that is consistent with the principles relating to Directives (in s35B of the Act).

A health professional can refuse to comply with a provision in an Advance Care Directive if they believe on reasonable grounds that:

• the person did not intend the provision to apply in the particular circumstances, or
• the provision is ambiguous or does not appear to reflect the current wishes of the person.

Before refusing to comply, the health practitioner must make reasonable efforts to consult with the person’s authorised decision maker.

If the health practitioner refuses to comply with a binding provision, they must make a written record of the refusal and the reasons for it in the person’s clinical records.

In urgent situations, a health practitioner may provide health care, despite not having access to the person’s Directive, if it is necessary to save the person’s life, prevent serious damage to health, or prevent the person suffering significant pain or distress.

The health practitioner is also not required to follow a provision in a Directive:

• that specifies a particular kind of health care that the person wishes to receive
• that requests a kind of health care that is not consistent with Tasmania’s current standards of health care
• that in the health practitioner’s opinion, would result in futile treatment being provided
• if they have a conscientious objection. However, the objecting practitioner must refer the person’s care to another health practitioner and must not provide treatment that would prevent the person’s Directive from being acted on.

Despite this, the health practitioner must still provide health care consistent with the values and preferences expressed in the person’s Directive, and act in accordance with any direction given by the Tribunal.

Generally, a health practitioner will be protected from criminal or civil liability (including disciplinary action) for any action taken or not taken in good faith, without negligence and in accordance with an Advance Care Directive.

What if there is a disagreement about an Advance Care Directive?

If there is a disagreement about:

• the making or revoking of an Advance Care Directive, or
• providing health care to a person who has made a Directive

an eligible person (e.g. the person, an authorised decision maker, a health practitioner or health service provider providing health care to the person, or another person with a proper interest) can apply to the Public Guardian for preliminary assistance to resolve the dispute.

If all parties to the disagreement agree, the Public Guardian may arrange a mediation to resolve the dispute. The Public Guardian can refer a matter to the Tribunal if the Public Guardian has ended the mediation, or refused to give preliminary assistance because it would be more appropriate for the Tribunal to resolve the matter e.g. due to the time frame in which the decision needs to be made.

On application by an eligible person, the Tribunal may provide advice or direction in relation to an Advance Care Directive. It can also hold a hearing in relation to an Advance Care Directive, including to review a matter referred by the Public Guardian.

The Tribunal may:

• in the case of reviewing a matter dealt with by the Public Guardian, make an order confirming, varying, or cancelling an agreement reached at mediation; or
• in all cases, make a determination about:
  • whether the person making the Directive did or did not have:
    • decision making ability to make the Directive, or
    • impaired decision making ability in relation to any provision in the Directive
  • whether a Directive or a provision in it is invalid or valid
  • whether a person has the authority to make a decision in relation to a provision in a Directive
  • other determinations it thinks necessary or desirable in the circumstances.

The Tribunal may also refer certain matters to be dealt with by the Public Guardian if it believes it is more appropriate for the Public Guardian to deal with them.

Further information about dispute resolution in relation to Advance Care Directives is available from the Public Guardian Tasmania.