Tasmania

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.

Find out more about Tasmania's laws on capacity at Capacity and consent to medical treatment.

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

If the person who has lost capacity has an Advance Care Directive giving a direction about 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 make the decision. 

Where the person who has lost capacity is under 18 years, the person responsible will be 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 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. 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. The Tribunal can appoint either a full guardian (with all the powers the person would have if they were a parent and the represented person was a child) or a limited guardian (with specific powers only). Any person 18 or over who is not involved in a professional or administrative capacity in the medical care of treatment of the person can be an Enduring Guardian.

The Tribunal 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 18 or over can be a guardian provided the Tribunal 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 person’s spouse (including de facto partner) if the relationship is close and continuing.

• An unpaid carer of the person (who is now providing support, or provided support prior to the person entering residential care).

• A close friend or relative of the person, who has a close personal relationship with the person through frequent personal contact, and a personal interest in their welfare. They must not receive remuneration for caring for the person (however this does not include receiving a carer’s pension).

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.

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 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.

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 Board 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 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).

If the guardianship order or Enduring Guardian document appoints a guardian with full powers, the guardian or Enduring Guardian will be able to do anything a parent could do if the person was his or her child. They can consent to any health care that is in the person's best interests, and refuse or withdraw consent to any treatment, including life-sustaining treatment.

A guardian with limited powers only has the powers specified in the guardianship order or 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?

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 or decision-making ability;
• promoting that person’s best interests; and
• ensuring the wishes, directions, preferences and values of the person are, if possible, carried out.

A guardian will be acting in the best interests of the person when they act in ways including:

• in consultation with the person, taking into account his or her wishes, directions, preferences and values (including those in the person's Advance Care Directive),
• as an advocate for that person, and
• protecting the person from neglect, abuse or exploitation.

They must also take reasonable steps to ascertain if the person has an Advance Care Directive.

When determining whether medical treatment would be in the person's best interests, a person responsible and the Tribunal must take into account:

• the person's wishes, directions, preferences and values, including those in an Advance Care Directive (if possible);
• the consequences to the person if the treatment is not provided;
• any alternative treatment that is available;
• the nature and degree of significant risks of any treatment; and
• that treatment must only be carried out to promote and maintain the health and wellbeing of the person
• any other matters set out in the regulations.

The Tribunal must also consider whether the proposed treatment can be postponed on the ground that better treatment may become available and whether the 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 Tribunal for advice or directions.

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 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 emergency 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.