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This is a Bill, not an Act. For current law, see the Acts databases.


CARE AND CONSENT TO MEDICAL TREATMENT BILL BILL 19 OF 2016

                                     TASMANIA

                                    __________



      CARE AND CONSENT TO MEDICAL TREATMENT BILL

                                      2016

                                    __________


                                    CONTENTS



1.    Short title

2.    Objects

3.    Interpretation

4.    Legal competence to consent to medical treatment

5.    Administration of medical treatment to a child

6.    Consent required

7.    Emergency medical treatment

8.    Consent to medical treatment if person has impaired decision making ability

9.    Application of part

10.   Consent of person responsible

11.   Consent to be taken to be that of person who gave advance care directive

12.   Person must not give consent unless authorised to do so

13.   Medical practitioner's duty to explain

14.   Protection for medical practitioners

15.   Care of people who are dying

16.   Certain acts not authorised



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Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ 17. Interpretation 18. Application of part 19. Appointment of Public Advocate and resolution of disputes 20. Public Advocate may refer matter to the Board 21. Public Advocate may refer question of law to Supreme Court 22. Application for review 23. Board may refer matter to Public Advocate 24. Failing to comply with direction of Board 25. Reviews and appeals 26. Board must give notice of proceedings 27. Reasons for decisions 28. Representation of person who is subject of proceedings 29. Regulations 30. Transitional provisions 31. Amendments to the Guardianship and Administration Act Tas 1995 32. Advance Care Directives Act 2016 Schedule 1 - Consequential Amendment to the Guardianship and Administration Act 1995 Schedule 2 - Advance Care Directives Act (Tas) 2016 - draft bill 2

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ CARE AND CONSENT TO MEDICAL TREATMENT BILL 2016 (Brought in by Madeleine Ruth Ogilvie, MHA) A BILL FOR An Act to deal with consent to medical treatment; to regulate medical practice so far as it affects the care of people who are dying; and for other purposes. Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and the House of Assembly, in Parliament assembled, as follows: Part 1--Preliminary 1--Short title This Act may be cited as the Care and Consent to Medical Treatment Act (Tas) 2016. 2--Objects The objects of this Act are: (a) to make certain reforms to the law relating to consent to medical treatment: (i) to allow persons of or over the age of 16 years to decide freely for themselves on an informed basis whether or not to undergo medical treatment; and (ii) to provide for the administration of emergency medical treatment in certain circumstances without consent; and (b) to provide for the medical treatment of people who have impaired decision-making capacity; and (c) to allow for the provision of palliative care, in accordance with proper standards, to people who are dying and to protect their right to refuse medical treatment that is intrusive, burdensome and futile. 3

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ 3--Interpretation (1) In this Act, unless the contrary intention appears-- administration of medical treatment includes the prescription or supply of drugs; advance care directive means a non-binding advance care plan under the Advance Care Directives Act 2016 (refer Schedule 2) that is in force; Board means the Guardianship and Administration Board established by the Guardian and Administration Act Tas 1995; child means a person under 16 years of age; decision of the Board, has the same meaning as in the Acts Interpretation Act 1931; euthanasia is the act of unlawfully ending the life of a patient and includes acts which are prohibited under Part V of the Criminal Code Act (Tas) 1924. guardian means a person acting or appointed under the provisions of the Guardianship and Administration Act Tas 1995 or any other law as the guardian of another; impaired decision-making capacity, in respect of a particular decision is defined at subsection (2); internal review means a review under the Advance Care Directive Act (Tas) 2016; life sustaining measures means medical treatment that supplants or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent operation, and includes assisted ventilation, artificial nutrition and hydration and cardiopulmonary resuscitation; medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student) and includes a dentist; medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs; 4

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ palliative care is the active, total care of patients whose disease is not responsive to curative treatment, including control of pain and other symptoms, and the provision of care for social, psychological and spiritual issues of patients and their families. parent of a child, includes-- (a) a step-parent; and (b) an adult who acts in loco parentis in relation to the child; persistent unresponsive state is a condition of profound non- responsiveness, and includes post-coma unresponsiveness and a minimally responsive state; Public Advocate means the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1995; representative of a patient, means a person authorised under this or any other Act or law to make decisions about the administration of medical treatment of the relevant kind to the patient; substitute decision-maker means a person authorised to act in place of a decision maker. terminal illness means an illness or condition that is reasonably likely to result in death; terminal phase of an eventually fatal illness means the phase of the illness reached when there is no reasonable prospect of recovery or remission of symptoms (on either a permanent or temporary basis); (2) For the purposes of this Act, a person will be taken to have impaired decision-making capacity in respect of a particular decision if-- (a) the person is not capable of-- (i) understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or (ii) retaining such information; or (iii) using such information in the course of making the decision; or (iv) communicating his or her decision in any manner; or 5

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (b) the person is, by reason of being comatose, lacking in capacity or otherwise unconscious, unable to make a particular decision about his or her medical treatment. (3) For the purposes of this Act-- (a) a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; (b) a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; (c) a person may fluctuate between having impaired decision-making capacity and full decision-making capacity; (d) a person's decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person. (4) For the purposes of this Act, a medical practitioner is entitled to presume that a person who purports to be in a close and continuing relationship with another person is in such a relationship unless the medical practitioner knew, or ought reasonably to have known, that those persons were not in such a relationship. (5) For the purposes of this Act, a medical practitioner is entitled to presume that a person who purports to have a particular relationship to another person (whether the relationship is based on affinity or consanguinity or otherwise) does have such a relationship unless the medical practitioner knew, or ought reasonably to have known, that the person did not have such a relationship to the other person. 5.1 References to provision of medical treatment includes withdrawal of medical treatment. Unless the contrary intention appears, a reference in this Act to the administration of medical treatment to a person will be taken to include a reference to the withdrawal, alteration or withholding, of medical treatment to the person (including, to avoid doubt, the withdrawal or withholding of life sustaining measures). 5.2 Nothing in this Act operates to require the consent of a person to be given before medical treatment (including, to avoid doubt, life sustaining measures) can be withdrawn or withheld. 6

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ Part 2--Consent to medical treatment generally 4--Legal competence to consent to medical treatment A person of or over 16 years of age may make decisions about his or her own medical treatment as validly and effectively as an adult. 5--Administration of medical treatment to a child A medical practitioner may administer medical treatment to a child if-- (a) the parent or guardian consents; or (b) the child consents and-- (i) the medical practitioner who is to administer the treatment is of the opinion that the child is capable of understanding the nature, consequences and risks of the treatment and that the treatment is in the best interest of the child's health and well- being; and (ii) that opinion is supported by the opinion of at least one other medical practitioner who personally examines the child before the treatment is commenced. 6--Consent required Nothing in this Act is to be taken as applying to any procedure over which the consent of any Court exercising jurisdiction of a law of the Commonwealth of Australia is required to be obtained. 7--Emergency medical treatment (1) Subject to this section, a medical practitioner may lawfully administer emergency medical treatment to a person (the patient) if-- (a) the patient is incapable of consenting (whether or not the person has impaired decision-making capacity in respect of a particular decision); and (b) the medical practitioner who administers the treatment is of the opinion that the treatment is necessary to meet an imminent risk to life or health and that opinion is supported by the written opinion of another medical practitioner who has personally examined the patient; and 7

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (c) the patient (if of or over 16 years of age) has not, to the best of the medical practitioner's knowledge, refused to consent to the treatment; and (d) the medical practitioner proposing to administer the treatment has made, or has caused to be made, reasonable inquiries to ascertain whether the patient (if the patient is 18 or more years of age) has given an advance care directive. (2) Subject to this section, a medical practitioner may lawfully administer medical treatment to a person (the patient) despite a provision of an advance care directive given by the patient comprising a refusal of medical treatment if-- (a) the patient is incapable of consenting (whether or not the patient has impaired decision-making capacity in respect of a particular decision); and (b) the medical practitioner who administers the treatment is of the opinion that the treatment is necessary to meet an imminent risk to life or health and that opinion is supported by the written opinion of another medical practitioner who has personally examined the patient; and (c) the medical practitioner who administers the treatment reasonably believes that the provision of the advance care directive is not intended to apply-- (i) to treatment of the kind proposed; or (ii) in the circumstances in which the proposed medical treatment is to be administered; and (d) it is not reasonably practicable in the circumstances of the case to have the matter dealt with under the Advance Care Directives Act 2016; (2) A supporting opinion is not necessary under subsection (1)(b) or (2)(b) if in the circumstances of the case it is not practicable to obtain such an opinion. (3) Inquiries under subsection (1)(d) need not be made if in the circumstances of the case it is not reasonably practicable to do so. (4) If-- 8

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (a) the patient has given an advance care directive; and (b) the medical practitioner proposing to administer the treatment is aware of that fact (whether on the basis of inquiries made under this section or otherwise); and (c) a substitute decision-maker appointed under the advance care directive is empowered or authorised to make decisions relating to the administration of such treatment and is reasonably available to make such a decision, (d) the medical treatment must not be administered without the consent of the substitute decision-maker. (e) this provision requires the substitute decision-maker to be given the opportunity to make the decision about consent if he or she is available. (5) If no such substitute decision-maker is available and a guardian of the patient is available, the medical treatment may not be administered without the guardian's consent. (6) If neither a substitute decision-maker nor a guardian of the patient is available, but a person responsible for the patient (within the meaning of Part 2A) is reasonably available and willing to consent to the administration of the medical treatment, the medical treatment may not be administered without the consent of the person responsible for the patient (given in accordance with Part 2A). (7) If the patient is a child, and a parent or guardian of the child is available to decide whether the medical treatment should be administered, the parent's or guardian's consent to the treatment must be sought but the child's health and well-being are paramount and if the parent or guardian refuses consent, the treatment may be administered despite the refusal if it is in the best interests of the child's health and well-being. Part 2A--Consent to medical treatment if person has impaired decision- making capacity 8--Impaired decision making (1) In this Part-- health care means any care, service, procedure or treatment provided by, or under the supervision of, a health practitioner for the 9

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ purpose of diagnosing, maintaining or treating a physical or mental condition of a person; health practitioner means a person who practises one or more of the following: (a) a health profession (within the meaning of the Health Practitioner Regulation National Law (Tas); (b) any other profession or practice declared by the regulations to be included in the ambit of this definition; medical practitioner in respect of particular health care, includes a health practitioner practising in the relevant profession or practice; medical treatment includes health care; patient means a person to whom medical treatment is, or is proposed to be, administered pursuant to this Part; person responsible for a patient means-- (a) if a guardian has been appointed in respect of the patient, and his or her powers as guardian have not been limited so as to exclude the giving of a consent contemplated by this Part and he or she is available and willing to make a decision as to such consent--that guardian; or (b) if paragraph (a) does not apply, but a prescribed relative of the patient who has a close and continuing relationship with the patient is available and willing to make a decision as to a consent contemplated by this Part--that prescribed relative; or (c) if paragraphs (a) or (b) do not apply, but an adult who is charged with overseeing the ongoing day-to-day supervision, care and well-being of the patient is available and willing to make a decision as to a consent contemplated by this Part-- that person; or (d) if none of the preceding paragraphs apply, or otherwise with the permission of the Board then the Board on the application of-- (i) a prescribed relative of the patient; or 10

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (ii) the medical practitioner proposing to give the treatment; or (iii) any other person who the Public Advocate is satisfied has a proper interest in the matter; prescribed relative--the following persons are prescribed relatives of a patient: (a) a person who is legally married to the patient; (b) an adult domestic partner of the patient (within the meaning of the Relationships Act (Tas) 2003 and whether declared as such under that Act or not); (c) an adult related to the patient by blood or marriage; (d) an adult related to the patient by reason of adoption; (e) an adult of Aboriginal or Torres Strait Islander descent who is related to the patient according to Aboriginal kinship rules or Torres Strait Islander kinship rules (as the case requires). (2) If a man and woman are married according to Aboriginal tradition, they will be regarded as legally married for the purposes of this Part. 9--Application of Part (1) This Part does not apply to, or in relation to, a child. (2) This Part does not apply to, or in relation to, a person who has given an advance care directive to the extent that-- (a) a substitute decision-maker has been appointed under the advance care directive who is authorised to make decisions relating to the administration of medical treatment of the relevant kind to the patient; or (b) the advance care directive makes specific provision in respect of the administration of medical treatment of the relevant kind to the patient. (3) This Part does not apply to, or in relation to, prescribed treatment (within the meaning of the Guardianship and Administration Act 1995). (4) Nothing in this Part limits the operation of section 6. 11

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ 10--Consent of person responsible for patient effective in certain circumstances (1) Where it is proposed to administer medical treatment to a patient with impaired decision-making capacity in respect of a decision that is required in relation to the medical treatment, a consent given by a person responsible for the patient to the administration of the proposed medical treatment-- (a) will be taken to be a consent given by the patient; and (b) will be taken to have the same effect for all purposes as if the patient gave the consent. (2) The regulations may make further provision in relation to the giving of consent by a person responsible for a patient for the purposes of this Act (including by limiting the kinds of medical treatment to which a specified class of person responsible can consent). (3) The effectiveness of a consent given by a person responsible for a patient is not affected merely because insufficient inquiries were made to locate a person with higher responsibility for the patient before the consent was given (as contemplated by the hierarchy in the definition of person responsible in section 7). (4) Consent to the administration of particular medical treatment will, for all purposes, be taken to have been given by the patient if-- (a) the medical treatment was administered with the purported consent of a person who represented to the medical practitioner that he or she was a person responsible for the patient; and (b) the medical practitioner did not know and could not reasonably be expected to have known that the person was not, in fact, a person responsible for the patient. 11 - Person responsible for patient to make substituted decision A decision of a person responsible for a patient to give, or to refuse to give, consent under this Part must, as far as is reasonably practicable, reflect the decision that the patient would have made in the circumstances had his or her decision-making capacity not been impaired. 12--Person must not give consent unless authorised to do so 12

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (1) A person who is not a person responsible for a particular patient is guilty of an offence if he or she, knowing that he or she is not a person responsible for the patient or being recklessly indifferent as to whether or not he or she is a person responsible for the patient-- (a) purports to give a consent under this Part in respect of the patient; or (b) represents to a medical practitioner that he or she is a person responsible for the patient. (2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 50 penalty units. Part 3--Provisions governing medical practice 13--Medical practitioner's duty to explain A medical practitioner has a duty to explain to a patient (or the patient's representative), so far as may be practicable and reasonable in the circumstances-- (a) the nature, consequences and risks of proposed medical treatment; and (b) the likely consequences of not undertaking the treatment; and (c) any alternative treatment or courses of action that might be reasonably considered in the circumstances of the particular case. 14--Protection for medical practitioners (1) A medical practitioner responsible for the treatment or care of a patient, or a person participating in the treatment or care of the patient under the medical practitioner's supervision, incurs no civil or criminal liability for an act or omission done or made-- (a) with the consent of the patient or the patient's representative or without consent but in accordance with an authority conferred by this Act or any other Act; and (b) in good faith; and (c) in accordance with proper professional standards of medical practice; and 13

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (d) in order to preserve or improve the quality of life. (2) Nothing in this section shall be taken as rendering inapplicable any common law duty owed by a medical practitioner to the patient of the medical practitioner. 15--Care of people who are dying (1) A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of such patient under the medical practitioner's supervision, incurs no civil or criminal liability by administering medical treatment with the intention of relieving pain or distress-- (a) with the consent of the patient or the patient's representative; and (b) in good faith and without negligence; and (c) in accordance with proper professional standards of palliative care, even where such treatment may carry increased risks to the patient, beyond those that would be deemed acceptable, in the normal course of medical practice. (2) A medical practitioner responsible for the treatment or care of such patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of the patient under the medical practitioner's supervision-- (a) is under no duty to use, or to continue to use, life sustaining measures in treating the patient if the effect of doing so would be merely to prolong life in a moribund state without any real prospect of improved life quality or in a persistent non- responsive state (whether or not the patient or the patient's representative has requested that such measures be used or continued); and (b) should, if the patient or the patient's representative so directs, withdraw life sustaining measures from the patient whilst continuing comprehensive palliative care including measures to achieve symptom relief. (3) For the purposes of the law of the State-- 14

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (a) the administration of medical treatment for the relief of pain or distress in accordance with subsection (1) does not constitute an intervening cause of death; and (b) the non-application or discontinuance of life sustaining measures in accordance with subsection (2) does not constitute an intervening cause of death. 16--Certain acts not authorised (1) This Act does not authorise the administration of medical treatment for the purpose of causing the death of the person to whom the treatment is administered. (2) This Act does not authorise a person to assist the suicide of another. (3) This Act does not authorise euthanasia. Part 4--Dispute resolution, reviews and appeals 17--Interpretation In this Part-- eligible person in relation to a matter, means-- (a) if the matter relates to a child--a parent or guardian of the child; and (b) if the matter relates to a patient with impaired decision-making capacity in respect of a particular decision--a person responsible for the patient; and (c) a medical practitioner who is providing, or is to provide, the medical treatment to which the matter relates; and (d) any other person who satisfies the Public Advocate that he or she has a proper interest in the matter; medical practitioner and medical treatment, in relation to the administration, or proposed administration, of medical treatment to a patient pursuant to Part 2A, have the same meanings as in that Part; patient means a patient within the meaning of Part 2A; person responsible for a patient has the same meaning as in Part 2A. 18--Application of Part 15

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ This Part applies to the following matters: (a) a decision of a parent or guardian of a child to consent, or to refuse to consent, to the administration of medical treatment to the child; (b) a decision of a medical practitioner to administer, or not administer, medical treatment to a patient pursuant to Part 2A; (c) a decision of a person responsible for a patient to consent, or to refuse to consent, to the administration of medical treatment to the person pursuant to Part 2A; (d) any other matter prescribed by the regulations for the purposes of this section. 19--Appointment of Public Advocate and resolution of disputes (1) The Public Advocate shall have responsibility for determining and resolving disputes under this Act. (2) The Public Advocate may, on application by an eligible person in relation to a matter to which this Part applies or on his or her own initiative, provide preliminary assistance in resolving the matter, including by-- (a) ensuring that the parties to the matter are fully aware of their rights and obligations; and (b) identifying the issues (if any) that are in dispute between the parties; and (c) canvassing options that may obviate the need for further proceedings; and (d) where appropriate, facilitating full and open communication between the parties. (3) The Public Advocate may mediate a matter to which this Part applies on application by an eligible person in relation to the matter. (4) An application under this section-- (a) must be made in a manner and form determined by the Public Advocate; and (b) must be accompanied by such information as the Public Advocate may reasonably require; and 16

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (c) must be accompanied by the prescribed fee. (5) Before undertaking a mediation, the Public Advocate may, if he or she thinks it appropriate to do so, require an applicant for mediation who is not a medical practitioner to first obtain a written report from an independent medical practitioner (made after examining the relevant person) setting out-- (a) the potential advantages and disadvantages of-- (i) the medical treatment that a medical practitioner proposes to administer to the relevant person; and (ii) any medical treatment that the eligible person, or some other person, has requested be administered to the relevant person; and this includes where the medical treatment comprises the withdrawal or withholding of medical treatment. (b) whether, in the independent medical practitioner's opinion, the requested treatment is in the best interest of the relevant person's health and well-being; and (c) any other information required by the regulations for the purposes of this subsection. (6) The Public Advocate may bring a mediation to an end at any time-- (a) if, in the opinion of the Public Advocate, it is more appropriate that the matter be dealt with by the Guardianship and Administration board or the court; or (b) at the request of a party to the mediation. (7) Evidence of anything said or done in the course of a mediation is not admissible in subsequent proceedings except by consent of all parties to the proceedings. (8) Without limiting any other ways in which the Public Advocate may inform himself or herself for the purposes of a mediation, the Public Advocate may seek advice from such persons as the Public Advocate thinks fit in relation to protecting the interests of a child who is a party to, or is otherwise affected by, the matter the subject of the mediation. 17

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (9) The Public Advocate has, for the purposes of this section, the same privileges and immunities as a member of the Board under the Guardianship and Administration Act 1995. (10) Subject to this Act, the Public Advocate may conduct a mediation in such manner as he or she thinks fit. (11) The regulations may make further provisions in relation to mediations under this section. 20--Public Advocate may refer matter to the Board (1) If the Public Advocate ends a mediation under section 19 on the grounds that it is more appropriate that the matter be dealt with by the Board, the Public Advocate may refer the matter to the Board. (2) The regulations may make further provision in respect of referrals under this section. 21--Public Advocate may refer question of law to Supreme Court The Public Advocate may refer any question of law for the opinion of the Supreme Court. 22--Applications for review (1) An eligible person in relation to a matter to which this Part applies may apply to the Board for-- (a) a review of a matter mediated by the Public Advocate under section 18; or (b) a declaration or direction in relation to the matter (including, to avoid doubt, a matter contemplated by section 18). (2) The Board may, on determining an application under this section-- (a) in the case of a review of a matter mediated by the Public Advocate--confirm, cancel or reverse a decision that is the subject of the review; and (b) in any case-- (i) make any declarations that the Board thinks necessary or desirable in the circumstances of the case; and (ii) give any directions that the Board thinks necessary or desirable in the circumstances of the case (including a 18

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ direction that the administration of particular medical treatment to a person be withdrawn or withheld); and (iii) give any advice that the Board considers necessary or desirable in the circumstances of the case. (3) The Board may vary or revoke a declaration or direction under this section. (4) The person to whom the medical treatment is to be provided or not provided (as the case requires) is (if he or she is not the applicant) a party to the proceedings. (5) Without limiting any other ways in which the Board may inform itself for the purposes of this section, the Board may seek advice from such persons or bodies as the Board thinks fit in relation to protecting the interests of a child who is a party to, or is otherwise affected by, an application. (6) The regulations may make further provisions in relation to proceedings under this section. (7) Subject to this Act, the Board may conduct a review under this section in such manner as it thinks fit. 23--Board may refer matter to Public Advocate (1) If the Board is of the opinion that it is more appropriate that a particular application under section 20 be dealt with by the Public Advocate, the Board may refer the matter to the Public Advocate. (2) The regulations may make further provision in respect of referrals under this section. 24--Failing to comply with direction of Board (1) Subject to this Act, a person who fails to comply with a direction of the Board under section 22 is guilty of an offence. (2) It is a defence to a charge of an offence against subsection (1) if the defendant proves that he or she did not know, and could not reasonably have been expected to know, that his or her conduct amounted to a failure to comply with the relevant direction. 25--Reviews and appeals 19

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ The following provisions operate in connection with decision of the Public Advocate and Board in relation to this Act: (1) a decision of the Public Advocate not to authorise publication of a report of proceedings before the Board may not be the subject of an application for internal review; (2) subject to paragraph (a), an application for internal review may be made by-- (i) the applicant in proceedings before the Board in the exercise of its original jurisdiction for the purposes of this Act; or (ii) a person to whom the proceedings relate (if not the applicant under paragraph (a)); or (iii) the Public Advocate; or (iv) any person who presented evidence or material before, or made submissions to, the Board in the relevant proceedings; or (v) any other person who satisfies the Board that he or she has a proper interest in the matter; (3) the person to whom an application for internal review relates (if he or she is not the applicant) will be a party to those proceedings; (4) the Board may make an order for costs against a party to proceedings for internal review, but only if the Board is satisfied that the institution of the proceedings, or the party's conduct in relation to the proceedings, was frivolous, vexatious or calculated to cause delay; (5) an appeal must be instituted within 14 days-- (i) after the making of the decision to which the appeal relates; or (ii) after being furnished with the reasons for that decision, whichever is the later (but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that period (even if the time for instituting the appeal has expired)); 20

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (6) no order for costs may be made against an applicant in an appeal if he or she is the person to whom the decision appealed against relates. 26--Board must give notice of proceedings (1) The Board must give the following persons reasonable notice of the time and place of the hearings of proceedings before the Board: (a) the applicant; (b) the person to whom the proceedings relate; (c) the Public Advocate; (d) such other persons as the Board considers have a proper interest in the matter. (2) Despite subsection (1)-- (a) the Board is not obliged to give notice of proceedings to a person if the person's whereabouts cannot, after reasonable enquiries, be ascertained; and (b) the Board may, if satisfied that urgent action is required in proceedings before the Board, make an order (or any other decision) as a matter of urgency without complying with subsection (1), with effect for a period not exceeding 21 days as directed by the Board. 27--Reasons for decisions The Board must, on request by a person who has a right of internal review of a decision of the Board or who satisfies the Board that he or she has a proper interest in the matter, furnish the person with a written statement of the Board's reasons for the decision, but not-- (a) if the request is made after the period for the review has expired; or (b) if a review has been instituted--after the review has been decided. 28--Representation of person who is subject of proceedings (1) A person who is the subject of proceedings before the Board is entitled to appear before the Board by-- (a) the Public Advocate; or 21

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ (b) except in the case of an internal review--a recognised advocate. (2) In this section-- recognised advocate means a person who is, by instrument in writing, recognised by the Tribunal as a person who is qualified to act as an advocate in proceedings before the Board for the person to whom the proceedings relate. 29--Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting subsection (1), the regulations may make provisions of a saving or transitional nature. (3) The regulations may-- (a) be of general application or vary in their application according to prescribed factors; (b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or a specified person or body. 30--Transitional Provisions If before the commencement of this Act a person granted an enduring power of attorney and purported to confer on the agent power to decide questions about the medical treatment of the grantor of the power in the event of the grantor's incapacity to do so, that power of attorney is as valid and effective as if it had been made under this Act. 31--Amendments of the Guardianship and Administration Act 1995 The Guardianship and Administration Act Tas1995 is amended as set out in schedule 1. 32-- Advance Care Directives Act 2016 The Advance Care Directives Act 2016 [Note: enabling legislation required], is set out at Schedule 2. 22

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ Schedule 1 Amendments to the Guardianship and Administration Act 1995 1. Sub-section (1) of section 3 is amended by inserting after the definition of President the following definition: Public Advocate means the Public Advocate established under section 18A. 2. By inserting after Part 3 the following Part: Part 3A - The Public Advocate 18A. Public Advocate Subject to and in accordance with the State Service Act 2000, a person is to be appointed as the Public Advocate and that person may hold that office in conjunction with State Service employment. 18B. Functions and powers of Public Advocate (1) The Public Advocate has the following functions: (a) Exercise any of the powers and functions as provided in section 14 of the Care and Consent to Medical Treatment Act 2016; and (b) Any other functions assigned to the Public Advocate by any other Act or law. (2) The Public Advocate has power to do all things necessary or convenient to be done in connection with the performance and of his or her functions. (3) In the performance of his or her functions under this Act the Public Advocate is not subject to the control or direction of the Minister. 18C. Staff of Public Advocate Subject to and in accordance with the State Service Act 2000, there are to be appointed such officers as are necessary to assist the Public Advocate in the performance of his or her functions under this Act and those officers may hold office in conjunction with State Service employment. 23

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ 18D. Delegation (1) The Public Advocate may in writing - (a) delegate to a person appointed under section 18C any of the functions or powers of the Public Advocate, other than this power of delegation; and (b) revoke wholly or partly a delegation. (2) A delegation - (a) May be made either generally or as otherwise provided by the instrument of delegation; and (b) Does not prevent the performance or exercise of a function or power by the Public Advocate. (3) A function or power performed or exercised by a delegate has the same effect as if performed or exercised by the Public Advocate. 24

 


 

Care and Consent to Medical Treatment Bill 2016 ________________________________________________________________________________ Schedule 2 Advance Care Directives Bill (Tas) 2016 A Bill for an Act to enable a person to make decisions and give directions in relation to their future health care, residential and accommodation arrangements and personal affairs; to provide for the appointment of substitute decision-makers to make such decisions on behalf of the person; to ensure that health care is delivered to the person in a manner consistent with their wishes and instructions; to facilitate the resolution of disputes relating to advance care directives; to provide protections for health practitioners and other persons giving effect to an advance care directive; and for other purposes. Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and the House of Assembly, in Parliament assembled, as follows: Contents Part 1--Preliminary 1. Short title 3. Interpretation 4. References to provision of health care to include withdrawal etc of health care 5. References to particular forms of health care in advance care directives 6. Health practitioner cannot be compelled to provide particular health care 7. Impaired decision-making capacity 8. Application of Act Part 2--Objects and principles 9. Objects 10. Principles 25

 


 

Care and Consent to Medical Treatment Bill 2016 Part 3--Advance care directives Division 1--Advance care directives 11. Giving advance care directives 12. Provisions that cannot be included in advance care directives 13. Advance care directive not to give power of attorney 14. Giving advance care directives where English not first language 15. Requirements for witnessing advance care directives 16. When advance care directives are in force 17. Advance care directive revokes previous advance care directives 18. No variation of advance care directive 19. Effect 20. Advance care directive has effect subject to its terms Division 2--Substitute decision-makers 21. Requirements in relation to appointment of substitute decision-makers 22. Substitute decision-makers jointly and severally empowered 23. Powers of substitute decision-maker 24. Exercise of powers by substitute decision-maker 25. Substitute decision-maker to give notice of decisions 26. Substitute decision-maker may obtain advice 27. Substitute decision-maker may renounce appointment 28. Death of substitute decision-maker does not affect validity of advance care directive Division 3--Revoking advance care directives Subdivision 1--Revoking advance care directive where person competent 29. Revoking advance care directive where person competent Subdivision 2--Revoking advance care directive where person not competent 30. Application of Subdivision 31. Tribunal to be advised of wish for revocation 32. Revoking advance care directives where person not competent 26

 


 

Care and Consent to Medical Treatment Bill 2016 Part 4--Recognition of advance care directives from other jurisdictions 33. Advance care directives from other jurisdictions Part 5--Giving effect to advance care directives 34. When things can happen under an advance care directive 35. Substitute decision-maker to give effect to advance care directive 36. Health practitioners to give effect to advance care directives 37. Conscientious objection 38. Consent etc taken to be that of person who gave advance care directive 39. Consent taken to be withdrawn in certain circumstances Part 6--Validity and limitation of liability 40. Presumption of validity 41. Protection from liability 42. Validity of acts etc under revoked or varied advance care directive Part 7--Dispute resolution, reviews and appeals Division 1--Preliminary 43. Interpretation 44. Application of Part Division 2--Resolution of disputes by Public Advocate 45. Resolution of disputes by Public Advocate 46. Public Advocate may refer matter to Board 46A. Public Advocate may refer question of law to Supreme Court Division 3--Resolution of disputes by Board 47. Board to give priority to wishes of person who gave advance care directive 48. Resolution of disputes by Board 49. Tribunal may refer matter to Public Advocate 50. Failing to comply with direction of Board 51. Orders of Board in relation to substitute decision-makers 27

 


 

Care and Consent to Medical Treatment Bill 2016 Division 4--Urgent review by Supreme Court of substitute decision-maker's decision 52. Urgent review by Supreme Court Division 5--Reviews and appeals 53. Reviews and appeals Part 7A--Special provisions relating to Board 54. Board must give notice of proceedings 54A. Reasons for decisions 54B. Representation of person who is subject of proceedings Part 8--Offences 55. False or misleading statements 56. Fraud, undue influence etc Part 9--Miscellaneous 57. Giving notice to substitute decision-makers 58. Prohibition of publication of reports of proceedings 59. Service of documents 60. Victimisation 61. Confidentiality 62. Review of Act 63. Regulations 28

 


 

Care and Consent to Medical Treatment Bill 2016 The Parliament of Tasmania enacts as follows: Part 1--Preliminary 1--Short title This Act may be cited as the Advance Care Directives Act 2013. 3--Interpretation (1) In this Act, unless the contrary intention appears-- advance care directive means a non-binding advance care plan given under this Act that is in force (and includes, where the context requires, a reference to the advance care plan form in relation to a particular advance care directive); advance care directive form means the form for giving advance care directives approved by the Minister from time to time and published in the Gazette; decision, of the Board, means a decision duly made by the board constituted under the Guardianship and Administration Act Tas; health care means any care, service, procedure or treatment (including medical treatment) provided by, or under the supervision of, a health practitioner for the purpose of diagnosing, maintaining or treating a physical or mental condition of a person; health practitioner means a person who practises one or more of the following: (a) a health profession (within the meaning of the Health Practitioner Regulation National Law (Tas); (b) any other profession or practice declared by the regulations to be included in the ambit of this definition; impaired decision-making capacity, in relation to a decision--see section 7; internal review means a review under the Guardianship and Administration Act (Tas) 1995; life sustaining measures has the same meaning as in the Care and Consent to Medical Treatment Act (Tas) 2016; medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); 29

 


 

Care and Consent to Medical Treatment Bill 2016 medical treatment means the provision by a medical practitioner of physical, surgical or psychological therapy to a person (including the provision of such therapy for the purposes of preventing disease, restoring or replacing bodily function in the face of disease or injury or improving comfort and quality of life) and includes the prescription or supply of drugs; Public Advocate means the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act (Tas) 1995; substitute decision-maker, under a particular advance care directive, means a substitute decision-maker appointed under Part 3 Division 2 or Part 7; Board means the board constituted under the Guardianship and Administration Act (Tas) 1995; (2) For the purposes of this Act, a reference to an act will be taken to include a reference to an attempt to do the act, and a refusal or omission to act. (3) For the purposes of this Act, a reference to a decision made by a substitute decision-maker appointed under an advance care directive will be taken to include a reference to an exercise of a power by the substitute decision-maker under the advance care directive. (4) For the purposes of this Act, a reference to a provision of an advance care directive will be taken to include a reference to a condition, instruction or direction of an advance care directive. 4--References to provision of health care to include withdrawal etc of health care Unless the contrary intention appears, a reference in this Act to the provision of health care to a person will be taken to include a reference to the withdrawal, or withholding, of health care to the person (including, to avoid doubt, the withdrawal or withholding of life sustaining measures). 5--References to particular forms of health care in advance care directives Subject to any provision of the advance care directive to the contrary, a reference in an advance care directive to particular health care will be taken to include a reference to any other health care that is of substantially the same kind, or that is only distinguishable on technical grounds not likely to be understood or appreciated by the person who gave the advance care directive. 6--Health practitioner cannot be compelled to provide particular health care (1) Nothing in this Act authorises the making of-- (a) a provision of an advance care directive; or (b) a decision by a substitute decision-maker under an advance care directive; or (c) an order made under Part 7, that purports to compel a health practitioner to provide a particular form of health care to a person. 30

 


 

Care and Consent to Medical Treatment Bill 2016 Note-- Whilst a person can indicate his or her wishes in respect of the health care he or she wishes to receive, ultimately the question of what form of health care should be provided to a patient is a matter for the health practitioner to decide (however, a person is entitled to refuse health care of any kind, or to require it to be stopped, including health care that saves or prolongs his or her life). (2) A provision of an advance care directive, a decision of a substitute decision-maker under an advance care directive or an order made under Part 7 is, to the extent that it contravenes subsection (1), void and of no effect. 7--Impaired decision-making capacity (1) For the purposes of this Act, a person will be taken to have impaired decision-making capacity in respect of a particular decision if-- (a) the person is not capable of-- (i) understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or (ii) retaining such information; or (iii) using such information in the course of making the decision; or (iv) communicating his or her decision in any manner; or (b) the person has satisfied any requirement in an advance care directive given by the person that sets out when he or she is to be considered to have impaired decision-making capacity (however described) in respect of a decision of the relevant kind. (2) For the purposes of this Act-- (a) a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; and (b) a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; and (c) a person may fluctuate between having impaired decision-making capacity and full decision-making capacity; and (d) a person's decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person. 8--Application of Act This Act applies within the State, and outside of the State to the full extent of the extraterritorial power of the Parliament. 31

 


 

Care and Consent to Medical Treatment Bill 2016 Part 2--Objects and principles 9--Objects The objects of this Act include the following: (a) to enable competent adults to give directions about their future health care, residential and accommodation arrangements and personal affairs; (b) to enable competent adults to express their wishes and values in respect of health care, residential and accommodation arrangements and personal affairs, including by specifying outcomes or interventions that they wish to avoid; (c) to enable competent adults to allow decisions about their future health care, residential and accommodation arrangements and personal affairs to be made by another person on their behalf; (d) to ensure, as far as is reasonably practicable and appropriate, that health care that is provided to a person who has given an advance care directive accords with the person's directions, wishes and values; (e) to ensure that the directions, wishes and values of a person who has given an advance care directive are considered in dealing with the person's residential and accommodation arrangements and personal affairs; (f) to protect health practitioners and others giving effect to the directions, wishes and values of a person who has given an advance care directive; (g) to provide mechanisms for the resolution of disputes relating to decisions made on behalf of those who have given an advance care directive. 10--Principles The following principles must be taken into account in connection with the administration, operation and enforcement of this Act (including, to avoid doubt, the resolution of disputes under Part 7): (a) an advance care directive enables a competent adult to make decisions about his or her future health care, residential and accommodation arrangements and personal affairs either by stating their own wishes and instructions or through one or more substitute decision-makers; (b) a competent adult can decide what constitutes quality of life for him or her and can express that in advance in an advance care directive; 32

 


 

Care and Consent to Medical Treatment Bill 2016 (c) a person is, in the absence of evidence or a law of the State to the contrary, to be presumed to have full decision-making capacity in respect of decisions about his or her health care, residential and accommodation arrangements and personal affairs; (d) a person must be allowed to make their own decisions about their health care, residential and accommodation arrangements and personal affairs to the extent that they are able, and be supported to enable them to make such decisions for as long as they can; (e) a person can exercise their autonomy by making self-determined decisions, delegating decision making to others, making collaborative decisions within a family or community, or a combination of any of these, according to a person's culture, background, history, spiritual or religious beliefs; (f) subject to this Act, an advance care directive, and each substitute decision-maker appointed under an advance care directive, has the same authority as the person who gave the advance care directive had when he or she had full decision-making capacity; (g) a decision made by a person on behalf of another in accordance with this Act-- (i) must, as far as is reasonably practicable, reflect the decision that the person would have made in the circumstances; and (ii) must, in the absence of any specific instructions or expressed views of the person, be consistent with the proper care of the person and the protection of his or her interests; and (iii) must not, as far as is reasonably practicable, restrict the basic rights and freedoms of the person; (h) in the event of a dispute arising in relation to an advance care directive, the wishes (whether expressed or implied) of the person who gave the advance care directive are of paramount importance and should, insofar as is reasonably practicable, be given effect; (i) subject to this Act, in determining the wishes of a person who gave an advance care directive in relation to a particular matter, consideration may be given to-- (i) any past wishes expressed by the person in relation to the matter; and (ii) the person's values as displayed or expressed during the whole or any part of his or her life; and (iii) any other matter that is relevant in determining the wishes of the person in relation to the matter. 33

 


 

Care and Consent to Medical Treatment Bill 2016 Part 3--Advance care directives Division 1--Advance care directives 11--Giving advance care directives (1) A competent adult may give an advance care directive if he or she-- (a) understands what an advance care directive is; and (b) understands the consequences of giving an advance care directive. (2) Subject to this section, a person gives an advance care directive by-- (a) completing any relevant sections of an advance care directive form in accordance with this Act and any instructions contained on that form, or causing any relevant sections to be so completed; and (b) having the completed advance care directive form witnessed in accordance with this Act; and (c) complying with any other requirements set out in the regulations in relation to giving advance care directives. (3) Subject to this Act, an advance care directive can make such provision relating to the future health care, residential and accommodation matters and personal affairs of the person giving the advance care directive as he or she thinks fit. (4) Nothing in this Act authorises a person to give an advance care directive for or on behalf of another person. (5) An advance care directive, or a provision of an advance care directive, is not invalid merely because-- (a) the person giving the advance care directive did not complete a particular section of the advance care directive form (other than a section specified in an instruction on the form as being a section that must be completed); or (b) the person giving the advance care directive did not appoint a substitute decision-maker; or (c) the person giving the advance care directive was not fully informed in relation to each medical condition, or any other circumstance, to which the advance care directive relates; or (d) the person giving the advance care directive did not seek legal or other professional advice in relation to the advance care directive; or (e) the advance care directive contains a minor error (being an error that does not affect the ability to understand the wishes and instructions of the person who gave the advance care directive); or (f) instructions in the advance care directive are expressed in informal language rather than medical or technical terminology; or 34

 


 

Care and Consent to Medical Treatment Bill 2016 (g) the person giving the advance care directive expressed their wishes in general terms rather than specific instructions, or that his or her wishes in relation to a particular matter need to be inferred from the advance care directive; or (h) instructions in the advance care directive are based solely on religious, moral or social grounds. 12--Provisions that cannot be included in advance care directives (1) Subject to this Act, an advance care directive cannot make provisions of the following kinds: (a) a provision-- (i) that is unlawful; or (ii) that would require an unlawful act to be performed; or Example-- An example of such a provision would be a request for euthanasia. (iii) that would, if given effect, cause a health practitioner or other person to contravene a professional standard or code of conduct (however described) applying to the health practitioner or person; (b) a provision that comprises a refusal of mandatory medical treatment; (c) any other provision of a kind declared by the regulations to be within the ambit of this section. (2) For the purposes of subsection (1), a reference to a professional standard or code of conduct does not include a reference to a standard or code of conduct prepared by or on behalf of a hospital, clinic, hospice, nursing home or any other place at which health care is provided to a person that regulates the provision of health care or other services at that place. (3) A provision of an advance care directive that contravenes subsection (1) is, to the extent of the contravention, void and of no effect. (4) In this section-- mandatory medical treatment means-- (a) medical treatment ordered under a community treatment order or an inpatient treatment order under the Mental Health Act 2009; or (b) any other medical treatment of a kind prescribed by regulations for the purposes of this definition. 35

 


 

Care and Consent to Medical Treatment Bill 2016 13--Advance care directive not to give power of attorney (1) Nothing in this Act authorises an advance care directive to have the effect of giving a power of attorney. (2) A provision of an advance care directive that purports to give a power of attorney is void and of no effect. 14--Giving advance care directives where English not first language (1) The following provisions apply where a person for whom English is not his or her first language wishes to give an advance care directive: (a) the advance care directive may be given with the assistance of an interpreter in relation to a language in which the person is fluent (the interpreter); (b) any information required under this Act to be given to the person in relation to the advance care directive must be given to the person through the interpreter; (c) the advance care directive form must be completed in English; (d) the interpreter must complete the relevant section of the advance care directive form certifying that-- (i) in his or her opinion, any information required under this Act to be given to the person giving the advance care directive was given to, and appeared to be understood by, the person; and (ii) the information recorded in the advance care directive form accurately reproduces in English the original information and instructions of the person provided in the course of giving the advance care directive; (e) if an advance care directive form is completed in accordance with this section, the advance care directive will, for the purposes of this Act, be taken to have been given by the person. (2) Nothing in this section prevents a person who is a suitable witness in relation to a particular advance care directive from being an interpreter under this section. 15--Requirements for witnessing advance care directives (1) An advance care directive will only be taken to have been witnessed in accordance with this Act if-- (a) the advance care directive form is witnessed by a suitable witness in accordance with the regulations; and (b) the suitable witness completes the appropriate parts of the advance care directive form certifying that-- (i) he or she gave to the person giving the advance care directive any information required by the regulations for the purposes of this section; and 36

 


 

Care and Consent to Medical Treatment Bill 2016 (ii) he or she explained to the person giving the advance care directive the legal effects of giving an advance care directive of the kind proposed; and (iii) in his or her opinion, the person giving the advance care directive appeared to understand the information and explanation given to him or her by the suitable witness under this paragraph; and (iv) in his or her opinion, the person giving the advance care directive did not appear to be acting under any form of duress or coercion; and (c) any other requirements set out in the regulations in relation to the witnessing of advance care directives have been complied with. (2) However, a person cannot be a suitable witness in relation to a particular advance care directive-- (a) if he or she is appointed under the advance care directive as a substitute decision-maker; or (b) if he or she has a direct or indirect interest in the estate of the person giving the advance care directive (whether as a beneficiary of the person's will or otherwise); or (c) if he or she is a health practitioner who is responsible (whether solely or with others) for the health care of the person giving the advance care directive; or (d) if he or she occupies a position of authority in a hospital, hospice, nursing home or other facility at which the person giving the advance care directive resides; or (e) in any other circumstances set out in the regulations in which a person cannot be a suitable witness in relation to a particular advance care directive. (3) For the purposes of this section, a reference to duress or coercion in relation to a person giving an advance care directive includes a reference to duress or coercion due solely to a perception or mistake on the part of the person. (4) In this section-- suitable witness means a person, or a class of persons, who satisfies any requirements prescribed by the regulations for the purposes of this definition. 16--When advance care directives are in force (1) An advance care directive will be taken to be in force from the time that the advance care directive is witnessed in accordance with this Act. (2) Subject to this Act, an advance care directive remains in force-- (a) -- 37

 


 

Care and Consent to Medical Treatment Bill 2016 (i) if an expiry date is specified in the advance care directive-- until that day; or (ii) if no expiry date is specified in the advance care directive-- until it is revoked in accordance with this Act; or (b) until the death of the person who gave the advance care directive, whichever occurs first. 17--Advance care directive revokes previous advance care directives (1) Subject to this Act, if a person gives an advance care directive, any previous advance care directives given by the person are revoked. (2) A revocation of a previous advance care directive will be taken to have occurred at the time the later advance care directive is taken to be in force. 18--No variation of advance care directive Subject to this Act, an advance care directive cannot be varied. Note-- If a person wishes to vary the terms of his or her advance care directive, he or she must prepare a new one in accordance with this Act. However, only a competent adult can give an advance care directive--see section 11. There is, however, capacity for the Tribunal to vary an advance care directive by appointing another substitute decision-maker in certain circumstances--see Part 7 Division 3. 19-- Effect All provisions of an advance care directive are non-binding provisions. 20--Advance care directive has effect subject to its terms Subject to this Act, and to any other Act or law, an advance care directive has effect according to its terms. Division 2--Substitute decision-makers 21--Requirements in relation to appointment of substitute decision-makers (1) Subject to this Act, a person giving an advance care directive may appoint one or more adults to be substitute decision-makers in respect of the advance care directive. (2) However, the following persons cannot be appointed or act as a substitute decision-maker in relation to a particular advance care directive: (a) a person who is not competent; (b) a health practitioner who is responsible (whether solely or with others) for the health care of the person giving the advance care directive; 38

 


 

Care and Consent to Medical Treatment Bill 2016 (c) a paid carer of the person giving the advance care directive; (d) any other person of a class prescribed by the regulations for the purposes of this section. (3) An appointment of a substitute decision-maker must comply with any other requirements set out in the regulations for the purposes of this section. (4) An appointment in contravention of this section is void and of no effect. 22--Substitute decision-makers jointly and severally empowered Subject to this Act and to any provision of an advance care directive to the contrary, if a person giving an advance care directive appoints more than one substitute decision-maker in respect of the advance care directive, the substitute decision-makers are jointly and severally empowered to make decisions under the advance care directive. 23--Powers of substitute decision-maker (1) Subject to this Act and to any provision of the advance care directive, a substitute decision-maker appointed under an advance care directive may make any decision that the person who gave the advance care directive could have lawfully made in respect of the following areas: (a) health care (other than a kind of health care declared by the regulations to be excluded from the ambit of this paragraph); (b) residential and accommodation arrangements; (c) personal affairs. (2) Nothing in subsection (1) authorises a substitute decision-maker to make a decision of a kind that requires the substitute decision-maker to have been given the person's power of attorney unless the required power of attorney has in fact been given to the substitute decision-maker. (3) An advance care directive does not authorise a substitute decision-maker to perform functions that the person who gave the advance care directive has as a trustee or personal representative of another. (4) Despite any provision of an advance care directive to the contrary, an advance care directive does not authorise a substitute decision-maker to refuse the following: (a) the administration of drugs to relieve pain or distress; (b) the provision of food and liquids. 24--Exercise of powers by substitute decision-maker (1) Without limiting any other provision of this Act, a substitute decision-maker may only make a decision under an advance care directive if-- (a) the substitute decision-maker produces the advance care directive at the request of a health practitioner who is to provide health care in accordance with the decision; and 39

 


 

Care and Consent to Medical Treatment Bill 2016 (b) the substitute decision-maker is not prevented under this or any other Act or law from acting under the advance care directive; and (c) the substitute decision-maker is competent at the time the decision is made. (2) A requirement under this section to produce an advance care directive will be taken to be satisfied if-- (a) the substitute decision-maker produces a document that has been certified, in accordance with the regulations, as a true copy of the advance care directive; or (b) the substitute decision-maker makes available a copy of the advance care directive in accordance with a scheme set out in the regulations in respect of electronic access to, or provision of, copies of advance care directives. 25--Substitute decision-maker to give notice of decisions If a substitute decision-maker makes a decision under the advance care directive, he or she must take reasonable steps to notify each other substitute decision-maker appointed under the advance care directive of the decision. 26--Substitute decision-maker may obtain advice (1) Despite any other Act or law, a substitute decision-maker may obtain such advice (whether of a professional or technical nature or otherwise) as he or she reasonably requires in relation to the exercise of his or her powers, or discharge of his or her responsibilities, under an advance care directive. (2) However, a substitute decision-maker must have regard to, and seek to protect, the privacy of the person who gave the advance care directive when obtaining such advice. 27--Substitute decision-maker may renounce appointment (1) Subject to this section, a substitute decision-maker appointed under an advance care directive may, by notice in writing given to the person who gave the advance care directive, renounce his or her appointment. (2) Subject to this Act and to any provision of the advance care directive to the contrary, the powers and responsibilities of another substitute decision-maker appointed under an advance care directive are not affected merely because a substitute decision-maker has renounced his or her appointment under subsection (1). 40

 


 

Care and Consent to Medical Treatment Bill 2016 (3) If the sole substitute decision-maker appointed under an advance care directive wishes to renounce his or her appointment during a period in which the person who gave the advance care directive is not competent, the appointment may only be renounced with the permission of the Tribunal. 28--Death of substitute decision-maker does not affect validity of advance care directive The death of a substitute decision-maker appointed under an advance care directive does not, of itself, affect the validity of the advance care directive. Division 3--Revoking advance care directives Subdivision 1--Revoking advance care directive where person competent 29--Revoking advance care directive where person competent (1) A person who has given an advance care directive and who-- (a) is competent; and (b) understands the consequences of revoking the advance care directive, may revoke the advance care directive at any time. (2) An advance care directive may only be revoked in the manner prescribed by the regulations. (3) On revoking an advance care directive, the person must, as soon as is reasonably practicable-- (a) advise each substitute decision-maker appointed under the advance care directive of the revocation; and (b) take reasonable steps to notify each other person who has been given a copy of the advance care directive of the revocation. Subdivision 2--Revoking advance care directive where person not competent 30--Application of Subdivision This Subdivision applies to a person who has given an advance care directive but who-- (a) is not competent; or (b) does not appear to understand the consequences of revoking an advance care directive. 41

 


 

Care and Consent to Medical Treatment Bill 2016 31--Board to be advised of wish for revocation (1) A person who becomes aware that a person to whom this Subdivision applies wishes, or may wish, to revoke an advance care directive must, as soon as is practicable and in accordance with any requirement set out in the regulations, advise the Board of that fact. (2) The Board, on being advised under this section, may give any directions to specified persons or bodies that the Board thinks necessary or desirable in the circumstances of the case. (3) A person who, without reasonable excuse, refuses or fails to comply with a direction under subsection (2) is guilty of an offence. (4) It is a defence to a charge of an offence against subsection (3) if the defendant proves that he or she did not know, and could not reasonably have been expected to know, that his or her conduct amounted to a failure to comply with the direction. (5) A health practitioner or other person who advises the Board that a person wishes, or may wish, to revoke an advance care directive-- (a) cannot, by virtue of doing so, be held to have breached any code of professional etiquette or ethics, or to have departed from any accepted form of professional conduct; and (b) insofar as he or she has acted in good faith, incurs no civil or criminal liability in respect of the advice. 32--Revoking advance care directives where person not competent (1) An advance care directive of a person to whom this Subdivision applies may only be revoked by the Board in accordance with this section. (2) Subject to subsection (3), the Board must revoke an advance care directive if-- (a) -- (i) the person who gave the advance care directive, or a person acting on his or her behalf, applies to the Board for the revocation in a manner and form determined by the Board; or (ii) the Board is advised under section 31 of a person's wish to revoke an advance care directive; and (b) the Board (having made such inquiries as it thinks fit) is satisfied that-- (i) the person who gave the advance care directive understands the nature and consequences of the revocation; and (ii) the revocation genuinely reflects the wishes of the person; and (iii) the revocation is, in all the circumstances, appropriate. 42

 


 

Care and Consent to Medical Treatment Bill 2016 (3) If an advance care directive expressly provides that the advance care directive is not to be revoked in the circumstances contemplated by this Subdivision, the Board should not revoke the advance care directive unless satisfied that the current wishes of the person who gave the advance care directive indicate a conscious wish to override such a provision. (4) If the Board revokes an advance care directive under this section, the Board -- (a) must advise each substitute decision-maker appointed under the advance care directive of the revocation as soon as is reasonably practicable; and (c) may give such advice and directions as the Board considers necessary or desirable in the circumstances of the case. Part 4--Recognition of advance care directives from other jurisdictions 33--Advance care directives from other jurisdictions (1) The Governor may, by regulation, declare a class of instruments made under a corresponding law to be an interstate advance care directive. (2) Subject to this section-- (a) for the purposes of the laws of this State, an interstate advance care directive has effect as if it were an advance care directive given under this Act; and (b) this Act (other than Part 3) applies to an interstate advance care directive as if it were an advance care directive given under this Act; and (c) the powers and responsibilities of a substitute decision-maker under the interstate advance care directive will be determined in accordance with the corresponding law under which the interstate advance care directive was given. (3) For the purposes of this Act, a provision of an interstate advance care directive of a kind contemplated by section 6, 12(1) or 13 will be taken to be void and of no effect (whether or not the provision was able to be included in the interstate advance care directive in the jurisdiction in which it was made). (4) In this section-- corresponding law means a law of the Commonwealth, or of another State or Territory, that is declared by the regulations to be a corresponding law for the purposes of this section. 43

 


 

Care and Consent to Medical Treatment Bill 2016 Part 5--Giving effect to advance care directives 34--When things can happen under an advance care directive (1) A substitute decision-maker may only make a decision under an advance care directive if, at the relevant time, the person who gave the advance care directive has impaired decision-making capacity in respect of the decision. (2) A health practitioner may only provide health care pursuant to a consent granted under an advance care directive (whether by a substitute decision-maker or otherwise) if, at the relevant time, the person who gave the advance care directive has impaired decision-making capacity in respect of a decision relevant to the provision of the health care. (3) Nothing in this section prevents a provision of an advance care directive being taken into account when determining the wishes of the person who gave the advance care directive. 35--Substitute decision-maker to give effect to advance care directive (1) Subject to this Act, in making a decision under an advance care directive, a substitute decision-maker-- (a) must, as far as is reasonably practicable-- (i) give effect to instructions or wishes expressed in the advance care directive; and (ii) seek to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied); and (iii) obtain, and have regard to, the wishes of the person who gave the advance care directive (whether such wishes are expressed or implied); and (iv) endeavour to make the decision in a manner that is consistent with the principles set out in section 10; and (b) must make the decision that he or she reasonably believes the person who gave the advance care directive would have made in the circumstances; and (c) must act in good faith and with due diligence. (2) A failure to comply with this section does not, of itself, result in any civil or criminal liability on the part of the substitute decision-maker. 44

 


 

Care and Consent to Medical Treatment Bill 2016 36--Health practitioners to give effect to advance care directives (1) Subject to this Act, a health practitioner who is providing, or is to provide, health care to a person who has given an advance care directive and who has impaired decision-making capacity in respect of a decision that is required in relation to the health care-- (a) should, as far as is reasonably practicable, endeavour to comply with the wishes of the patient as contained in an advance care directive; and (c) should, as far as is reasonably practicable, endeavour to avoid any outcome or intervention that the person who gave the advance care directive would wish to be avoided (whether such wish is expressed or implied); and (d) must endeavour to provide the health care in a manner that is consistent with the principles set out in section 10. (2) Despite subsection (1), a health practitioner may refuse to comply with a provision of an advance care directive if the health practitioner believes on reasonable grounds that-- (a) the person who gave the advance care directive did not intend the provision to apply in the particular circumstances; or (b) the provision does not reflect the current wishes of the person who gave the advance care directive. (3) Despite subsection (1), a health practitioner may refuse to comply with a provision of an advance care directive that specifies the kind of health care that the person who gave the advance care directive wishes to receive if such health care-- (a) is not consistent with any relevant professional standards; or (b) does not reflect current standards of health care in the State. 37--Conscientious objection Despite any other provision of this Act, a health practitioner may refuse to comply with a provision of an advance care directive on conscientious grounds. 38--Consent etc taken to be that of person who gave advance care directive For the purposes of the law of the State, a consent to particular health care given or refused pursuant to an advance care directive-- (a) will be taken to be the consent or refusal of consent (as the case requires) of the person who gave the advance care directive; and (b) will be taken to have the same effect for all purposes as if the person were capable of giving such consent. 45

 


 

Care and Consent to Medical Treatment Bill 2016 39--Consent taken to be withdrawn in certain circumstances (1) If, at any time before particular health care is provided pursuant to a consent granted under an advance care directive (whether by a substitute decision-maker or otherwise), the person who gave the advance care directive expressly or implicitly withdraws his or her consent to the health care, the consent will, for the purposes of the law of the State, be taken to have been withdrawn. (2) Subsection (1) does not apply in relation to particular health care, or health care of a particular kind-- (a) if the advance care directive expressly excludes its operation; or (b) in any other circumstances prescribed by the regulations. (3) Any act or omission done or made in good faith, without negligence and in accordance with an advance care directive before consent was withdrawn under this section will be taken to be valid, and always to have been valid. Part 6--Validity and limitation of liability 40--Presumption of validity A health practitioner, substitute decision-maker or other person is entitled to presume that an apparently genuine advance care directive is valid and in force unless he or she knew, or ought reasonably to have known, that the advance care directive was not valid or in force (as the case requires). 41--Protection from liability (1) A health practitioner, substitute decision-maker or other person incurs no criminal or civil liability for an act or omission done or made in good faith, without negligence and in accordance with, or purportedly in accordance with, an advance care directive. (2) For the purposes of this section, a reference to the civil liability of a person includes a reference to liability arising under disciplinary proceedings or similar proceedings. 42--Validity of acts etc under revoked or varied advance care directive Subject to this Act, the revocation or variation of an advance care directive under this Act does not affect the validity of any act done or decision made under the advance care directive before the revocation or variation. Part 7--Dispute resolution, reviews and appeals Division 1--Preliminary 43--Interpretation In this Part-- eligible person, in respect of an advance care directive, means-- (a) the person who gave the advance care directive; and 46

 


 

Care and Consent to Medical Treatment Bill 2016 (b) a substitute decision-maker appointed under the advance care directive; and (c) a health practitioner providing, or proposing to provide, health care to the person who gave the advance care directive; and (d) any other person who satisfies the Public Advocate that he or she has a proper interest in a particular matter relating to the advance care directive, and, for the purposes of section 48, includes each person who was a party to any mediation under Division 2 arising out of the matter. 44--Application of Part This Part applies to the following matters: (a) the giving or revoking of an advance care directive; (b) a decision, or proposed decision, under an advance care directive; (c) the provision, or proposed provision, of health care to a person who has given an advance care directive; (d) any other matter specified by the regulations for the purposes of this section. Division 2--Resolution of disputes by Public Advocate 45--Resolution of disputes by Public Advocate (1) The Public Advocate may, on application by an eligible person in respect of an advance care directive or on his or her own initiative, provide preliminary assistance in resolving a matter to which this Part applies, including by-- (a) ensuring that the parties to the matter are fully aware of their rights and obligations; and (b) identifying the issues (if any) that are in dispute between the parties; and (c) canvassing options that may obviate the need for further proceedings; and (d) where appropriate, facilitating full and open communication between the parties. (2) The Public Advocate may, on application by an eligible person in respect of an advance care directive, mediate a matter to which this Part applies. (3) The Public Advocate may bring a mediation to an end at any time-- (a) if, in the opinion of the Public Advocate, it is more appropriate that the matter be dealt with by the Board; or (b) at the request of a party to the mediation. 47

 


 

Care and Consent to Medical Treatment Bill 2016 (4) Evidence of anything said or done in the course of a mediation under this section is not admissible in subsequent proceedings except by consent of all parties to the proceedings. (5) The Public Advocate may, on application by an eligible person in respect of an advance care directive or on his or her own initiative, or in relation to a mediation under this section-- (a) make such of the following declarations in respect of a matter to which this Part applies as the Public Advocate thinks necessary or desirable in the circumstances of the case: (i) a declaration as to the nature and scope of a person's powers or responsibilities under the advance care directive; (ii) a declaration as to whether or not a particular act or omission is within the powers, or discharges the responsibilities, of a person under the advance care directive; (iii) a declaration as to whether or not the person who gave the advance care directive has impaired decision-making capacity in relation to a specified decision; (iv) any other declaration prescribed by the regulations; and (b) give any advice that the Public Advocate considers necessary or desirable in the circumstances of the case. (6) The Public Advocate may vary or revoke a declaration under this section. (7) The Public Advocate may refuse to determine an application for a declaration or advice under this section if, in the opinion of the Public Advocate, it is more appropriate that the matter be dealt with by the Board. (8) An application under this section-- (a) must be made in a manner and form determined by the Public Advocate; and (b) must be accompanied by such information as the Public Advocate may reasonably require; and (c) must be accompanied by the prescribed fee. (9) An application under this section may be determined by the Public Advocate despite the absence of any person who may be affected by the Public Advocate's decision. (10) The Public Advocate has, for the purposes of this section, the same privileges and immunities as a member of the Guardianship and Administration Board. (11) Subject to this Act, the Public Advocate may conduct proceedings under this section in such manner as he or she thinks fit. 48

 


 

Care and Consent to Medical Treatment Bill 2016 (12) Despite section 23 of the Guardianship and Administration Act 1995, the Public Advocate cannot delegate a power or function conferred on the Public Advocate under subsection (5)(a) or (6). (13) The regulations may make further provisions in relation to mediations under this section. 46--Public Advocate may refer matter to Board (1) If the Public Advocate ends a mediation, or refuses to determine an application, under section 45 on the grounds that it is more appropriate that the matter be dealt with by the Board, the Public Advocate may refer the matter to the Board. (2) The regulations may make further provision in respect of referrals under this section. 46A--Public Advocate may refer question of law to Supreme Court The Public Advocate may refer any question of law for the opinion of the Supreme Court. Division 3--Resolution of disputes by Board 47--Board to give priority to wishes of person who gave advance care directive Without limiting Part 2, the Board should, in performing a function or exercising a power under this Division-- (a) seek, as far as is reasonably practicable, to give effect to the wishes of the person who gave the relevant advance care directive. 48--Resolution of disputes by Board (1) An eligible person in respect of an advance care directive may apply to the Board for-- (a) a review of a matter dealt with by the Public Advocate under section 45; or (b) a declaration or direction in relation to a matter to which this Part applies (including, to avoid doubt, a matter contemplated by section 45). (3) The Board may, on determining an application under this section-- (a) in the case of a review of a matter dealt with by the Public Advocate under section 45-- (i) confirm, cancel or reverse a decision that is the subject of the review; (ii) confirm, vary or revoke a declaration given under section 45; and (b) in any case-- 49

 


 

Care and Consent to Medical Treatment Bill 2016 (i) make any declarations that the Board thinks necessary or desirable in the circumstances of the case; and (ii) give any directions that the Board thinks necessary or desirable in the circumstances of the case (including a direction that the provision of particular health care to a person be withdrawn or withheld); and (iii) give any advice that the Board considers necessary or desirable in the circumstances of the case. (4) The Board may vary or revoke a declaration or direction under this section. (5) The person who gave the advance care directive to which proceedings under this section relate is (if he or she is not the applicant) a party to the proceedings. (8) The regulations may make further provisions in relation to proceedings under this section. 49--Board may refer matter to Public Advocate (1) If the Board is of the opinion that it is more appropriate that a particular application under section 48(1)(b) be dealt with by the Public Advocate, the Board may refer the matter to the Public Advocate. (2) The regulations may make further provision in respect of referrals under this section. 50--Failing to comply with direction of Board (1) Subject to this Act, a person who fails to comply with a direction of the Board under section 48 is guilty of an offence. (2) It is a defence to a charge of an offence against subsection (1) if the defendant proves that he or she did not know, and could not reasonably have been expected to know, that his or her conduct amounted to a failure to comply with the relevant direction. 51--Orders of Board in relation to substitute decision-makers (1) If, on the application of an eligible person in respect of an advance care directive, the Board is satisfied that a person appointed as a substitute decision-maker under the advance care directive-- (a) is a person who cannot be a substitute decision-maker pursuant to section 21(2); or (b) is no longer willing to act as a substitute decision-maker under the advance care directive; or (c) has been negligent in the exercise of his or her powers under the advance care directive, the Board may-- (d) revoke the appointment of the substitute decision-maker; or 50

 


 

Care and Consent to Medical Treatment Bill 2016 (e) if the person who gave the advance care directive is competent-- with the consent of the person, make any variation to the advance care directive the Board thinks appropriate (including by appointing another substitute decision-maker); or (f) if the person who gave the advance care directive is not competent, and if no other substitute decision-maker was appointed under the advance care directive--revoke the advance care directive. (2) If, on the application of the Public Advocate, the Board is satisfied that, because of a change in the personal circumstances of-- (a) the person who gave the advance care directive; or (b) a substitute decision-maker under the advance care directive, it is no longer appropriate that a particular person be a substitute decision-maker under the advance care directive, the Board may make any of the orders contemplated by subsection (1)(d), (e) or (f). (5) However, the Board should not revoke an advance care directive under this section merely because there are provisions in the advance care directive that can continue to have effect despite the fact that there is no substitute decision-maker appointed under the advance care directive. Division 4--Urgent review by Supreme Court of substitute decision-maker's decision 52--Urgent review by Supreme Court (1) The Supreme Court may, on the application of-- (a) a health practitioner responsible (whether solely or with others) for the health care of a person who has given an advance care directive; or (b) any person who has, in the opinion of the Court, a proper interest in the exercise of powers by the substitute decision-maker, review the decision of a substitute decision-maker appointed under an advance care directive. (2) A review under this section-- (a) is limited to ensuring that the substitute decision-maker's decision is in accordance with the advance care directive and this Act; and (b) cannot be undertaken in respect of a decision to withdraw or withhold health care if the person who gave the advance care directive is in the advanced stages of an illness without any real prospect of recovery and the effect of the health care would be merely to prolong the person's life. (3) On completion of a review, the Supreme Court may-- (a) confirm, cancel or reverse the decision of the substitute decision-maker; and 51

 


 

Care and Consent to Medical Treatment Bill 2016 (b) make such other orders, and give such advice and directions, as the Court thinks necessary or desirable in the circumstances of the case. (4) The Supreme Court must conduct a review under this section as expeditiously as possible. Division 5--Reviews and appeals 53--Reviews and appeals (a) A decision of the Board not to authorise publication of a report of proceedings before the Board may not be the subject of an application for internal review; (b) subject to paragraph (a), an application for internal review may be made by-- (i) the applicant in proceedings before the Board in the exercise of its powers for the purposes of this Act; or (ii) a person to whom the proceedings relate (if not the applicant under paragraph (a)); or (iii) the Public Advocate; or (iv) any person who presented evidence or material before, or made submissions to, the Board in the relevant proceedings; or (v) any other person who satisfies the Board that he or she has a proper interest in the matter; (c) the person to whom an application for internal review relates (if he or she is not the applicant) will be a party to those proceedings; (d) the Board may make an order for costs against a party to proceedings for internal review, but only if the Board is satisfied that the institution of the proceedings, or the party's conduct in relation to the proceedings, was frivolous, vexatious or calculated to cause delay; (e) an appeal under must be instituted within 14 days-- (i) after the making of the decision to which the appeal relates; or (ii) after being furnished with the reasons for that decision, whichever is the later (but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that period (even if the time for instituting the appeal has expired)); 52

 


 

Care and Consent to Medical Treatment Bill 2016 Part 7A--Special provisions relating to Board 54--Board must give notice of proceedings (1) Board must give the following persons reasonable notice of the time and place of the hearings of proceedings before the Board: (a) the applicant; (b) the person to whom the proceedings relate; (c) the Public Advocate; (d) such other persons as the Board considers have a proper interest in the matter. (2) Despite subsection (1)-- (a) the Board is not obliged to give notice of proceedings to a person if the person's whereabouts cannot, after reasonable enquiries, be ascertained; and (b) the Board may, if satisfied that urgent action is required in proceedings before the Board, make an order (or any other decision) as a matter of urgency without complying with subsection (1), with effect as follows: (i) in the case of an order under section 32(1)--for a period not exceeding 14 days as directed by the Board; (ii) in any other case--for a period not exceeding 21 days as directed by the Board. 54A--Reasons for decisions The Board must, on request by a person who has a right of internal review of a decision of the Board or who satisfies the Board that he or she has a proper interest in the matter, furnish the person with a written statement of the Board's reasons for the decision, but not-- (a) if the request is made after the period for the review has expired; or (b) if a review has been instituted--after the review has been decided. 54B--Representation of person who is subject of proceedings (1) A person who is the subject of proceedings before the Board is entitled to appear before the Board by-- (a) the Public Advocate; or (b) except in the case of an internal review--by a recognised advocate. (3) In this section-- recognised advocate means a person who is, by instrument in writing, recognised by the Board as a person who is qualified to act as an advocate in proceedings before the Board for the person to whom the proceedings relate. 53

 


 

Care and Consent to Medical Treatment Bill 2016 Part 8--Offences 55--False or misleading statements (1) A person who knowingly makes a false or misleading statement in, or in relation to, an advance care directive is guilty of an offence. Maximum penalty: (2) A person who knowingly makes a false or misleading statement in relation to an attempt to give an advance care directive is guilty of an offence. (3) For the purposes of subsection (1), a reference to a substitute decision-maker includes a reference to a person who is not but who was, at the relevant time, a substitute decision-maker appointed under the advance care directive. 56--Fraud, undue influence etc (1) A person who, by dishonesty or undue influence, induces another to give an advance care directive is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (2) A person who purports to act as a substitute decision-maker appointed under an advance care directive knowing that-- (a) the advance care directive has been revoked; or (b) he or she is not a substitute decision-maker appointed under the advance care directive, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) If a person is convicted or found guilty of an offence against this section, the court sentencing the person may, if satisfied it is appropriate to do so in the circumstances-- (a) revoke the relevant advance care directive; or (b) if the person is a substitute decision-maker appointed under the relevant advance care directive--revoke the person's appointment as a substitute decision-maker; or (c) make any other order the court thinks appropriate. 54

 


 

Care and Consent to Medical Treatment Bill 2016 Part 9--Miscellaneous 57--Giving notice to substitute decision-makers (1) If a person or body is required under this or any other Act or law to give notice to a substitute decision-maker, that requirement will be taken to be satisfied if the person gives such notice to-- (a) if a particular substitute decision-maker is specified in the advance care directive as being the person to whom such notice is to be given--that substitute decision-maker; or (b) in any other case--the substitute decision-maker who is appointed first in the advance care directive. (2) If the first-appointed substitute decision-maker is given notice in accordance with subsection (1)(b), he or she must give each other substitute decision-maker appointed under the advance care directive-- (a) if the notice is a written notice--a copy of the notice; or (b) in any other case--information setting out the effect of the notice. 58--Prohibition of publication of reports of proceedings (1) Subject to this section, a person must not publish a report of any proceedings under this Act. (2) The body or court before which proceedings under this Act are heard may, on application by a person who it is satisfied has a proper interest in the matter, authorise the publication of a report of those proceedings. (3) A person who publishes a report pursuant to an authorisation given under subsection (2) must not disclose any information in the report that identifies, or could tend to identify, the person to whom the proceedings relate. (4) This section does not apply if the person who gave the relevant advance care directive consents to the publication of the report or information. 59--Service of documents A notice or document required or authorised to be given or sent to, or served on, a person for the purposes of this Act may-- (a) be given to the person personally; or (b) be posted in an envelope addressed to the person-- (i) at the person's last known address; or (ii) at the person's address for service; or (c) be left for the person at the address for service with someone apparently over the age of 16 years; or 55

 


 

Care and Consent to Medical Treatment Bill 2016 (d) be transmitted by fax or email to a fax number or email address provided by the person (in which case the notice or document will be taken to have been given or served at the time of transmission). 60--Victimisation (1) A person commits an act of victimisation against another person (the victim) if he or she causes detriment to the victim on the ground, or substantially on the ground, that the victim-- (a) has made, or wishes to make an advance care directive; or (b) is a substitute decision-maker appointed under an advance care directive; or (c) is otherwise involved in relation to an advance care directive. (2) An act of victimisation under this Act may be dealt with-- (a) as a tort; or (b) as if it were an act of victimisation under the Anti-Discrimination Act (Tas)1998 (3) If a complaint alleging an act of victimisation under this Act has been lodged with the Anti-Discrimination Commissioner and the Commissioner is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority, the Commissioner may decline to act on the complaint or to proceed further with action on the complaint. (4) In this section-- detriment includes-- (a) injury, damage or loss; or (b) intimidation or harassment; or (c) discrimination, disadvantage or adverse treatment in relation to the victim's employment or business; or (d) threats of reprisal. 61--Confidentiality (1) A person engaged or formerly engaged in the administration of this Act must not divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except-- (a) as required or authorised by or under this Act or any other Act or law; or (b) with the consent of the person to whom the information relates; or (c) in connection with the administration of this Act; or (d) as may be required to give effect to the provisions of an advance care directive to which the information relates; or 56

 


 

Care and Consent to Medical Treatment Bill 2016 (e) to an authority responsible under the law of a place outside this State, where the information is required for the proper administration of that law; or (f) to an agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth for the purposes of the proper performance of its functions. (2) Subsection (1) does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates. (3) Information that has been disclosed under subsection (1) for a particular purpose must not be used for any other purpose by-- (a) the person to whom the information was disclosed; or (b) any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure. 62--Review of Act (1) The Minister must cause a review of the operation of this Act to be conducted and a report on the results of the review to be submitted to him or her. (2) The review and the report must be completed before the fifth anniversary of the commencement of this Act. (3) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report. 63--Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting subsection (1), the regulations may-- (a) exempt (conditionally or unconditionally) a specified person or class of persons from a specified provision or provisions of this Act; and (b) prescribe fees in respect of any matter under this Act and their payment, recovery or waiver; and (c) prescribe fines, not exceeding $5 000, for offences against the regulations; and (d) make provisions for the facilitation of proof of the commission of offences against the regulations; and (e) make provisions of a saving or transitional nature. (3) The regulations may-- (a) be of general application or vary in their application according to prescribed factors; and 57

 


 

Care and Consent to Medical Treatment Bill 2016 (b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or a specified person or body. Schedule 1--Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting subsection (1), the regulations may make provisions of a saving or transitional nature. (3) The regulations may - (a) be of general application or vary in their application according to prescribed factors; (b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or a specified person or body. [Tabled 7 April 2016 - Madeleine Ogilvie] 58

 


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