Key legislation and terminology
Tasmania’s laws relating to withholding and withdrawing life-sustaining treatment and guardianship are contained in the Guardianship and Administration Act 1995 (Tas) (the Guardianship Act).
Under the Act, ‘medical treatment’ and ‘treatment’ include most medical procedures and specifically include palliative care.
‘Disability’ is any restriction of ability to perform an activity in a normal manner (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function).
Substitute decision-making in Tasmania at the end of life
When will a substitute decision-maker be needed to make medical treatment decisions for another person at the end of life?
A person is presumed to have capacity to make medical treatment decisions. A person will have capacity if they are capable of:
- understanding the general nature and effect of the proposed treatment; and
- indicating whether or not he or she consents, or does not consent, to the treatment.
If a person no longer has capacity, a substitute decision-maker will need to make the treatment decision on the person’s behalf. This situation often arises as a person nears the end of their life.
Who can be a substitute decision-maker for medical treatment decisions at the end of life?
If the person who has lost capacity has a common law Advance Directive giving a direction about medical treatment, that direction must be followed.
If the person does not have an Advance Directive, the first person on the following list who is available, willing and able to act can be a substitute decision-maker, and make medical treatment decisions for the person (in order of priority):
- An Enduring Guardian appointed by the person under an Enduring Guardian document made when he or she had capacity. Anyone over 18 who is not involved in a professional or administrative capacity in the medical care of treatment of the person can be an Enduring Guardian. More information about Enduring Guardians is available from the Guardianship and Administration Board (the Board).
- A guardian appointed by the Board. The Board can appoint a guardian if they are satisfied that a person has a ‘disability’ and is unable to exercise reasonable judgment relating to their health care. Any person over 18 can be a guardian provided the Board believes:
- he or she will act in the person’s best interests;
- there is no conflict of interest between the proposed guardian and the person who has lost capacity; and
- they are a suitable person to act.
The Public Guardian may be appointed as guardian, usually where no one else is available or willing to act. More information about guardians is available from the Guardianship and Administration Board.
- A default decision-maker, known as a person responsible. That will be the first person from the following list who is available and willing to make the decision.
- Where the person who has lost capacity is under 18 years: his or her spouse; or if they have no spouse, his or her parent.
- Where the person who has lost capacity is 18 years or over, the following people, in order of priority:
- His or her guardian. This means an Enduring Guardian or guardian, as discussed above.
- His or her spouse if the relationship is close and continuing.
- An unpaid carer of the person.
- A close friend or relative of the person who has lost capacity, if the friend or relative maintains both a close personal relationship with the person through frequent personal contact, and a personal interest in his or her welfare. They will not be a close friend or relative if they receive remuneration for any services involving care for the person who has lost capacity (however this does not include receiving a carer’s pension).
The consent of the person responsible must be given in writing, unless it is not practical to do so because the treatment is urgent. In that situation, the oral consent of the person responsible will be sufficient.
If the person responsible refuses to give consent to medical treatment, the health professional can apply to the Guardianship and Administration Board for the appointment of a guardian; seek the consent of another person responsible; or apply to the Board for its consent to the treatment.
If there are no other substitute decision-makers, the treating health professional may make a decision in the case of an emergency or where the treatment is authorised under the Act.
Substitute decision-making by Tasmania’s guardianship bodies
What is the role of the Guardianship and Administration Board in relation to decision-making at the end of life?
The Guardianship and Administration Board has power to consent to life-sustaining treatment on behalf of a person who has lost capacity. When making a decision about medical treatment, the Board must take into account the principles set out in the Act.
What is the role of the Public Guardian in relation to decision-making at the end of life?
The Public Guardian is an independent office created under the Act. It has a number of functions relating to substitute decision-making at the end of life, including being appointed as a guardian for a person who lacks decision-making capacity when no one else is available or suitable. If the Public Guardian is appointed as guardian, the Board can grant the Public Guardian the power to give consent, or to refuse or withdraw consent for medical treatment for the person.
Medical treatment decision-making by a substitute decision-maker
What medical treatment decisions can a substitute decision-maker make?
It is possible for an Enduring Guardian or a guardian to make most medical treatment decisions for a person at the end of life, including giving consent to treatment, or refusing or withdrawing consent to treatment. However, they will only be able to make such decisions if they are granted the power to do so (in the case of a guardian - by the Board; and for an Enduring Guardian - in the Enduring Guardian document). If there are no limitations, the Enduring Guardian or guardian will be able to do anything a parent could do if the patient was his or her child, including consenting to life-sustaining treatment, or refusing or withdrawing consent to life-sustaining treatment.
Where the Board appoints a guardian with full powers, the guardian will be able to consent to any health care in the person’s best interests, and can refuse or withdraw consent to any treatment.
A person responsible is able to consent to medical treatment, however it is unlikely he or she has the specific power to refuse treatment or withdraw consent to treatment. This is because the legislation does not specifically grant this power to a person responsible. This decision-maker can however withhold consent to that treatment, which may result in life-sustaining treatment not being given (and may have a similar effect as refusing treatment).
How do substitute decision-makers make decisions?
All substitute decision-makers must follow the principles set out in the Act when deciding whether or not to consent to medical treatment for a person at the end of life. These principles include:
- making decisions that are least restrictive of the freedom of decision and action of the person with impaired capacity;
- promoting that person’s best interests; and
- ensuring the wishes of the person are, if possible, carried out.
A guardian will be acting in the best interests of the person who lacks capacity when they act:
- in consultation with the person and take into account his or her wishes;
- as an advocate for that person; and
- in a way that protects the person from neglect, abuse or exploitation.
All persons responsible, when determining whether medical treatment would be in the best interests of a person who lacks capacity, must also consider:
- the wishes of that person, if possible;
- the consequences to the person if the treatment is not provided;
- any alternative treatment that is available;
- the nature and degree of risks of any treatment; and
- that treatment must only be carried out to promote and maintain the health and wellbeing of the person.
The Board, when considering an application for consent to carry out medical treatment, and determining whether that treatment is in the best interests of the person, may also consider whether the proposed treatment can be postponed on the grounds that:
- better treatment may become available; and
- whether that person is likely to become capable of consenting to the treatment.
If a substitute decision-maker has difficulty making a decision and needs assistance, he or she may apply to the Guardianship and Administration Board for advice or direction.
Can health professionals provide, withhold or withdraw treatment without the consent of a person’s substitute decision-maker?
In Tasmania it is an offence to provide medical treatment to a person who lacks capacity unless consent for the treatment has been given, or the treatment is authorised under the Act to be given without consent.
Treatment can be lawfully given by a health professional without consent where:
- there is no person responsible;
- the treatment is necessary to promote the person’s health and wellbeing; and
- the person does not object to the treatment.
There are some exceptions to this, including where the particular treatment involves a substantial risk to the person of death, brain damage, paralysis, or permanent loss of function, or extreme pain or distress. In those situations consent to the provision of treatment is required.
A health professional is under no duty to treat a person (even if requested by a substitute decision-maker) if the treatment would be of no benefit, not in the person’s best interests, or futile. In this situation there is no obligation for a health professional to obtain consent to the withholding or withdrawing of such treatment (though, as a matter of practice they may wish to do so).
Who makes decisions about life-sustaining treatment in an emergency situation?
In an emergency situation, a substitute decision-maker’s consent is not required. Instead, life-sustaining treatment can be provided, withheld or withdrawn for a person without consent if the person’s health professional believes the treatment is necessary, as a matter of urgency, to:
- save the person’s life;
- prevent serious damage to the person’s health; or
- prevent the person from suffering or continuing to suffer significant pain or distress.
Complaints and dispute resolution
End of life decision-making can be a very challenging and emotional time for the patient, their family and friends, substitute decision-makers and health professionals. Sometimes disputes arise about medical decision-making for the person.
If anyone (including a health professional) is concerned about a substitute decision-maker or disagrees with the decisions being made, or a decision cannot be reached about the person’s care and treatment, that person can apply to the Board to revoke or amend the substitute decision-maker’s appointment, or for the Board to provide advice, directions or consent to the medical treatment.
For further information about conflict resolution relating to guardianship and end of life decision-making, visit the Office of the Public Guardian.