Advance care directives in Tasmania 

This article states the law of Tasmania. Advance care directives sit in *Part 5A of the Guardianship and Administration Act 1995 (Tas)* rather than in a separate statute, so the guardianship principles in s 8 and the Part 5A principles in s 35B apply together¹. The prior question is which set of principles a given argument rests on, because s 35B states that its principles apply "in addition to" those in s 8.

What the Part sets out to do

Section 35A states the objects. They include enabling persons with decision-making ability to give directions about their future health care; to express their preferences and values, "including by specifying outcomes or interventions they wish to avoid"; to ensure, as far as reasonably practicable and appropriate, that health care accords with the person's directions, preferences and values; to protect health practitioners and others giving effect to them; and to provide mechanisms for resolving disputes about directives.

Paragraph (b) is broader than most equivalents. A directive may specify outcomes to be avoided, not only interventions — so a person may record that they wish to avoid a particular state of being rather than only a particular treatment. That is a more useful drafting latitude than a refusal-only instrument such as the ACT health direction permits.

Paragraph (d) matters practically: protecting practitioners who act on a directive is stated as an object of the Part, which supports a reading that resolves doubt in favour of giving effect to it.

The presumption, stated for health care

Section 35B(c) provides that an adult is, "in the absence of evidence or a law of the State to the contrary", to be presumed to have decision-making ability in respect of decisions about the adult's health care.

Tasmania therefore states a presumption specific to health care decisions, alongside the general provisions of the Act. Queensland states a general presumption of capacity for a matter as general principle 1; Tasmania locates one in the health directive Part.

Section 35B(d) adds that a person must be allowed to make their own decisions about their health care to the extent that the person is able — a partial-capacity principle rather than an all-or-nothing switch.

Quality of life is the person's to define

Section 35B(b) provides that a person with decision-making ability "can decide what constitutes quality of life for that person and can express that in an advance care directive".

This addresses a recurring difficulty directly. Where a clinician or family member considers a course inconsistent with a good outcome, the Act allocates the judgement about what counts as quality of life to the person, not to the assessor. A student arguing about the weight of a directive should use this provision rather than arguing quality of life at large.

Autonomy may be exercised collaboratively

Section 35B(e) is the most distinctive provision in the Part. A person "can exercise his or her autonomy by making self-determined decisions, making collaborative decisions within a family or community, or a combination of any of these, according to the person's culture, background, history, or spiritual or religious beliefs".

No other jurisdiction in this series states relational autonomy so directly. The provision treats a decision made with family or community as an exercise of the person's autonomy rather than as evidence of undue influence or of a failure to decide independently. It also ties the mode of decision-making to the person's culture, background, history and beliefs.

The practical consequence is significant. An argument that a directive should carry less weight because it was arrived at collectively runs against s 35B(e). The Northern Territory reaches related ground by recognising customary law in its health care decision maker hierarchy, but Tasmania addresses the manner of deciding rather than the identity of the decider.

A directive carries the person's own authority

Section 35B(f) provides that, subject to the Part, "an advance care directive has the same authority as the person who gave the advance care directive had when the person had decision-making ability".

That is a strong equivalence. It is not that the directive is evidence of what the person wanted; it stands in the place of the person's own decision, with the authority the person then had. Compare Queensland's s 36(1), which achieves a similar result by deeming the direction to be given contemporaneously by a capable person, and Western Australia's s 110S(1), which does the same but is then defeated by unanticipated changed circumstances under s 110S(3).

Applying this in a problem question

1. Remember that the s 8 principles apply in addition to those in s 35B; identify which supports the argument.
2. Start from the s 35B(c) presumption of decision-making ability for health care decisions.
3. Apply s 35B(d) where the person retains partial ability, rather than treating capacity as binary.
4. Where quality of life is contested, apply s 35B(b) and allocate that judgement to the person.
5. Where the directive was arrived at with family or community, apply s 35B(e) rather than treating collaboration as a weakness.
6. State the directive's effect through s 35B(f) — the person's own authority — rather than as evidence of past wishes.

Self-check

• Have I applied both the s 8 and s 35B principles?
• Have I begun from the health care specific presumption in s 35B(c)?
• Have I treated collaborative decision-making as autonomy under s 35B(e)?
• Have I stated the directive's authority as equivalent to the person's own?