Tasmania

When will a substitute decision-maker be needed to make medical treatment decisions for another person at the end of life?

An adult is presumed to have decision-making ability unless a person or body responsible for assessing decision-making ability considers that the adult has impaired decision-making ability.

An adult will have impaired decision-making ability if they are unable, even with practicable and appropriate support, to:

• understand information relevant to the decision; or
• retain information relevant to the decision for a sufficient time to make and consistently communicate the decision; or
• use or weigh information relevant to the decision; or
• communicate the decision (whether by speech, gesture or other means).

If the person:

• has impaired decision-making ability, and
• is incapable of indicating whether or not they consent (or refuse consent) to medical treatment

a substitute decision-maker will be needed to decide on the person’s behalf.

A person will be incapable of giving consent to the treatment if they are incapable of:

• understanding the general nature and effect of the proposed treatment, or
• indicating whether or not they consent or do not consent to the treatment.

If the person has a valid Advance Care Directive relevant to the situation, they will be capable of giving consent, and their Directive must be followed.

Find out more about Tasmania's laws on:

• Capacity and consent to medical treatment
• Advance Care Directives.

Who can be a substitute decision-maker for medical treatment decisions at the end of life?

If a person with impaired decision-making ability has an Advance Care Directive giving a direction about the proposed medical treatment, that direction must be followed. If the person does not have an Advance Care Directive, a default decision-maker, known as a person responsible, may decide.

If the person is under 18 years, the person responsible will be their spouse, or, if they have no spouse, their parent.

If the person is 18 years or over, the person responsible will be the first person from the following list who is available and willing to make the decision (in order of priority):

• The person’s guardian, if they are appointed with power to make the decision. This means a guardian appointed by the Tasmanian Civil and Administrative Tribunal (the Tribunal), or an Enduring Guardian appointed by the person under an Enduring Guardian document. When appointing a guardian, the Tribunal must state the types of decisions the guardian can make e.g. consenting to medical treatment. The Tribunal can appoint a guardian if they are satisfied that the:
  • person has impaired decision-making ability;
  • person needs a guardian; and
  • order will promote the person’s personal and social wellbeing.

• The person’s spouse (including de facto partner) if the relationship is close and continuing. Where more than one person would qualify as a spouse, spouse means the last person to qualify.
• The person's unpaid carer. The person may receive a carer payment but must otherwise be unpaid.
• A close family member of the person, who maintains a close personal (unpaid) relationship with the other person through frequent personal contact and a personal interest in the other person’s welfare. This can be a:
  • spouse
  • parent
  • a person who has one or both parents in common with the person (a sibling)
  • a child
  • a child of or a parent of, the spouse of the person
  • a grandparent
  • an aunt or uncle
  • an adult of Aboriginal or Torres Strait Islander descent who is related to the person according to Aboriginal or Torres Strait Islander kinship rules (as the case requires)
  • any other carer or close friend who provides on-going personal support to the person, whether or not the other person is biologically related to the person. A close friend means another person who has a close personal relationship with the person and personal interest in the person’s welfare.

If none of these people is available or willing, the Tribunal may, on application, give consent or appoint a guardian. The Public Guardian may be appointed as guardian, usually where no one else is available or willing to act.

Responsibilities of the person responsible

Before providing consent, the person responsible must be satisfied that the person is incapable of consenting and that the medical treatment would promote the person and social wellbeing of the person. When deciding, the person responsible must take into account:

• The person’s wishes, directions, preferences and values (including those in an Advance Care Directive), if they can be ascertained
• The consequences to the person if treatment is not carried out
• Any alternative treatment available
• The nature and degree of any significant risks of the proposed treatment or alternative treatment
• That the treatment is only to promote and maintain the person’s health and wellbeing.

Find out more about substitute decision-makers and consent to treatment in these factsheets:

• Consent to medical treatment
• Consent to medical treatment by a person responsible.

What is supported decision-making?

Supported decision-making is a process that involves providing support so that a person, such as an adult with a cognitive impairment, can make their own decisions with assistance and participate in decision-making.

The Act recognises the right of a person to be provided with access to the support necessary to enable them to:

• make and participate in decisions,
• express their will and preferences, and
• develop their decision-making ability.

A person will not have impaired decision-making ability unless reasonable steps have been taken to provide the person with appropriate support to make and communicate the decision. Examples of support are:

• the use of information or formats tailored to the person’s needs
• assistance to communicate decisions
• giving the person additional time to make decisions
• using technology to help the person making the decision.

The principles that allow for supported decision-making are discussed in detail below.

What is the role of the Tasmanian Civil and Administrative Tribunal in relation to decision-making at the end of life?

The Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (the Tribunal) has power to consent to life-sustaining treatment for a person who has lost capacity. It cannot refuse or withdraw consent to life-sustaining treatment.

The Tribunal also has powers to hear matters relating to Advance Care Directives.

When making a decision about medical treatment the Tribunal must take into account the principles set out in the Act.

The Tribunal may consent to medical treatment if it is satisfied that the treatment is lawful, the person is incapable of consenting, and that the medical treatment would promote the person and social wellbeing of the person. When deciding, the Tribunal must take into account matters including:

• The person’s wishes, directions, preferences and values (including those in an Advance Care Directive), if they can be ascertained
• The consequences to the person if treatment is not carried out
• Any alternative treatment available
• Whether the treatment can be postponed because better treatment may become available and whether the person is likely to become capable of consenting.

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 with impaired decision-making capacity when no one else is available or suitable. If the Public Guardian is appointed as guardian, the Tribunal can grant the Public Guardian the power to give consent, or to refuse or withdraw consent for medical treatment for the person. The Public Guardian also has dispute resolution powers, including mediating disputes in some situations.

The Public Guardian must also follow the principles set out in the Act when it makes a treatment decision.

For more information visit the Office of the Public Guardian.

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 Tribunal; and for an Enduring Guardian - in the Enduring Guardian document).

A person responsible is able to consent to medical treatment, however it is unlikely he or she has the 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?

Before deciding for a person, substitute decision-makers (including guardians) must support the person to make their own decisions and participate in decision-making, express their will and preferences, and develop their decision-making ability.

When making decisions, substitute decision-makers must also apply the decision-making principles.

Decision-making process

When determining whether to decide for the person, a substitute decision-maker must first consider whether the person:

• has a relevant Advance Care Directive, and
• is likely to regain decision-making ability and, if so, whether the decision can be postponed without the delay causing harm.

If a substitute decision-maker is satisfied there is a need to decide for the person, they must:

• give effect, as far as practicable, to the views, wishes and preferences of the person with impaired decision-making ability, if known (including those in an Advance Care Directive), and
• if they cannot determine these, give effect to what they reasonably believe those views, wishes and preferences are, based on all of the information available, and act in a manner that promotes the personal and social wellbeing of the person and is least restrictive of their human rights.

Information available includes information obtained by consulting with close family members, carers, and other significant people in the person’s life who they person would want to be consulted.

There are other considerations a person responsible must take into account when making a decision. These are discussed above under Who can be a substitute decision-maker for medical treatment decisions at the end of life?

The views, wishes and preferences of the person should only be overridden by a substitute decision-maker if:

• it is necessary to prevent serious harm, or the risk of serious harm, to the person or another person; or
• carrying out the decision would be unlawful, or inconsistent with decisions made by the Tribunal.

If the views, wishes and preferences of the person are overridden, the substitute decision-maker must provide the person with information about why, in a way appropriate to the person’s circumstances.

Can health professionals provide, withhold or withdraw treatment without the consent of a person’s substitute decision-maker?

It is an offence to provide medical treatment to a person without 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). Find out more about the law on futile or non-beneficial treatment at Adult Treatment Decisions.

When can urgent treatment be provided, and is consent required?

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.

Though not required by the law, it is still good practice for health professionals to obtain a substitute decision-maker’s consent to the urgent treatment if possible.

For more information about emergency treatment visit Capacity and consent to medical treatment.