TAS Releases Draft Advance Care Directives Bill for Public Comment

Thursday 1 October 2020 @ 11.29 a.m. | Legal Research

The Tasmanian Department of Justice has released the [Draft] Guardianship and Administration Amendment (Advance Care Directives) Bill 2020 (“Bill”) for public comment. The draft Bill proposes amendments to the Guardianship and Administration Act 1995 (Tas). Submissions close on 16 October 2020.

Background

As outlined in the Bill, all other Australian jurisdictions (except NSW), explicitly provide for Advance Care Directives (“ACD”) in legislation. This Bill will amend the Guardianship and Administration Act 1995 to provide for this purpose.

The Bill incorporates the recommendations of the Tasmanian Law Reform Institute (“TLRI”) on  ACDs in their 2018 Final Report on the Review of the Guardianship and Administration Act 1995 (Tas) (“the Report”). The Report endorsed aspects of the Advance Care Directives Act 2013 of SA (see pg xvi, Part 5: Making Decisions in Advance – Advance Care Directives) and that Act has also informed development of the Bill.

At page 64 of the 2018 Report, it is noted:

“ACDs have effect at common law. They do not have legislative recognition in Tasmania as a distinct document. The Act enables an adult to give directions about future medical treatment in an instrument. Donors often include directions or guidance to an enduring guardian about treatment in an instrument.”

Report author Kate Hanslow said:

“These reforms will bring Tasmania’s laws closer into line with laws in Victoria and several overseas jurisdictions and are broadly consistent with recommendations made by other law reform institutes across the country. The institute received a lot of feedback that, while advance care directives are made and used in Tasmania, it would be useful for their role to be confirmed by legislation.”

What is an “Advance Care Directive”

The Bill defines an ACD “as instructions about a person’s future decisions in relation to health care and treatment made by a person when they have decision making ability in anticipation of a time in the future when they do not have the ability to make those decisions due to illness or injury”.

Attorney-General Elise Archer revealed to The Advocate that "a legal framework for advance care directives would be the first in a number of stages to deal with reforming the state's Guardianship and Administration Act".

Other Recommendations

The majority of applications before the Guardianship and Administration Board involve people over 65 years of age, with the most common disability being dementia.

Among the Report’s recommendations is the removal of the need to establish that a person has a disability, and refocusing on whether a person is able to make decisions with the use of appropriate support. The Report states this approach ensures that people with disability are treated equally before the law, reflecting a contemporary rights-based approach to decision-making.

Other key recommendations noted on the UTAS website include:

  • a supported decision-making framework, with traditional guardianship and administration as a last resort;
  • decisions about a person’s life being based upon their views, wishes, preferences and rights, removing the "best interests" test;
  • clarifying the legal status of advanced care directives;
  • reforms to prevent, better detect, and respond to abuse and neglect of people with a need for decision-making support.

Current Initiatives

Currently, Tasmania has a Healthy Dying initiative with its object "to increase community understanding of the role of palliative care, and the value of having open discussion about people's values and wishes for the end of their life".

The initiative includes face-to-face community education, the promotion of a standard Advance Care Directive form to record information about a person's values and wishes to assist others in reaching decisions, and a process to better identify and manage each patient's Medical Goals of Care within a hospital or nursing home setting.

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