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TASMANIA
DIRECTIONS FOR MEDICAL TREATMENT
BILL 2005
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART 2- CONSENT TO MEDICAL
TREATMENT
4. Refusal of treatment for current condition
5. Anticipatory grant or refusal of consent to
medical treatment
Division 2- Cancellation of certificate or anticipatory
direction
6. Cancellation of certificate
7. Cancellation of anticipatory direction
8. Form of expressing a decision
Division 3- Obtaining certificate by fraud
1 Penalty for obtaining certificate by fraud etc.
[Bill ]
Division 4- Copies of certificates and register of
directions
10. Copies of refusal of treatment certificate
11. Register of anticipatory directions
PART 3- PROVISIONS GOVERNING
MEDICAL PRACTICE
Division 1 - Medical practice generally
12. Offence of medical trespass
13. Protection of medical practitioners
Division 2- Emergency medical treatment and
care of people who are dying
14. Emergency medical treatment
15. The care of people who are dying
16. Act does not authorise assisting in suicide
PART 4- MISCELLANEOUS AND
SUPPLEMENTAL
17. Regulations
1 Administration of Act
2
DIRECTIONS FOR MEDICAL TREATMENT BILL 2005
(Brought in by the Honourable Norma Mary Jamieson)
A BILL FOR
An Act to provide for persons to refuse medical
treatment in certain circumstances and for persons to
make anticipatory directions about future medical
treatment.
Be it enacted by His Excellency the Governor of
Tasmania, by and with the advice and consent of the
Legislative Council and House of Assembly, in
Parliament assembled, as follows:
PART 1- PRELIMINARY
1. Short title
This Act may be cited as the Directions for
Medical Treatment Act 2005.
2. Commencement
This Act commences on the day on which
this Act receives the Royal Assent.
3. Interpretation
In this Act, unless the contrary intention
appears -
"administration" of medical treatment
includes the prescription or supply of drugs;
"advance directive" has the same meaning
as medical directive or health care directive;
[Bill ] 3
s.1 No. Directions for Medical Treatment 2005
"anticipatory direction" See section 5.
"authorised witness" means
(a) a justice of the peace; or
1 a commissioner for declarations
within the meaning of the Oaths Act
2001;
"guardian" and "enduring guardian"
have the same meanings as they have in the
Guardianship and Administration Act 1995;
"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 registered
medical practitioner;
"medical treatment" means treatment or
procedures administered or carried out by a
medical practitioner in the course of medical
or surgical practice and includes the
prescription or supply of drugs;
"palliative care" means measures directed
at maintaining or improving the comfort of a
person who is, or would otherwise be, in
pain or distress;
"refusal of treatment certificate" means a
certificate referred to in section 4;
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2005 Directions for Medical Treatment No. s.4
"Registrar" means a person appointed
under section 10;
"terminal illness" means an illness or
condition that is likely to result in death;
"terminal phase of a terminal illness"
means the phase of the illness reached when
there is no real prospect of recovery or
remission of symptoms (on either a permanent
or temporary basis).
PART 2- CONSENT TO MEDICAL TREATMENT
Division 1 -- Refusal of treatment
4. Refusal of treatment for current condition
(1) In this section--
"person" includes a guardian or an enduring
guardian acting on behalf of a person within
the extent of the Guardianship and
Administration Act 1995 or of an instrument
of appointment made under that Act.
(2) If a medical practitioner and another person
are each satisfied--
(a) that a person has clearly expressed or
indicated a decision--
(i) to refuse medical treatment
generally; or
(ii) to refuse medical treatment of a
particular kind--
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s. 5 No. Directions for Medical Treatment 2005
for a current condition; and
(b) that the person's decision is made
voluntarily and without inducement or
compulsion; and
(c) that the person has been informed
about the nature of his or her condition
to an extent which is reasonably
sufficient to enable the person to make
a decision about whether or not to
refuse medical treatment generally or
of a particular kind (as the case
requires) for that condition and that the
person has appeared to understand that
information; and
(d) that the person is of sound mind and has
attained the age of 18 years-
the medical practitioner and the other
person may together witness a refusal of
treatment certificate.
(3) A refusal of treatment certificate is to be
completed in accordance with Form 1 of
Schedule 1 or in a form to similar effect.
5. Anticipatory grant or refusal of consent to
medical treatment.
(1) A person of or over 18 years of age may,
while of sound mind, give a direction under
this section about the medical treatment that
the person wants, or does not want, if he or
she is at some future time--
1 in the terminal phase of a terminal
illness, or in a persistent vegetative state;
and
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2005 Directions for Medical Treatment No. s.5
(b) incapable of making decisions about
medical treatment when the question of
administering the treatment arises.
(2) A direction under this section is not effective
unless--
(a) it is completed in accordance with Form 2
of Schedule 1 or in a form to similar
effect; and
(b) it is witnessed by two persons of whom
one is an authorised witness and the other
is a medical practitioner; and
(c) the direction is registered in accordance
with section 10 of this Act.
(3) If a person by whom a direction has been
given under this section--
(a) is in the terminal phase of a terminal
illness or in a persistent vegetative state;
and
(b) is incapable of making decisions about his
or her medical treatment; and
(c) there is no reason to suppose that the
person has revoked, or intended to
revoke, the direction--
the person is to be taken to have consented to
medical treatment that is in accordance with
the wishes of the person as expressed in the
direction and to have refused medical
treatment that is contrary to those expressed
wishes.
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s.6 No. Directions for Medical Treatment 2005
Division 2 Cancellation of certificate or anticipatory direction
6. Cancellation of certificate
A refusal of treatment certificate may be cancelled
by the person who gave the certificate clearly
expressing or indicating to a medical practitioner
or another person a decision to cancel the
certificate.
7. Cancellation of anticipatory direction
An anticipatory direction may be cancelled by the
person who gave the direction clearly expressing
or indicating to a medical practitioner or another
person a decision to cancel the direction.
8. Form of expressing a decision
For the purposes of subsections 4(1)(a), 6 and 7 a
person may clearly express or indicate a decision
in writing, orally or in any other way in which the
person can communicate.
Division 3 - Obtaining certificate by fraud
9. Penalty for obtaining certificate by fraud etc.
(1) A person who--
(a) is a beneficiary under the will of another
person; or
(b) has an interest under any instrument
under which another person is the donor,
settlor or grantor; or
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2005 Directions for Medical Treatment No. s. 10
(c) would be entitled to an interest in the
estate of another person on the death
intestate of that person--
and who, by any deception, fraud, mis-statement
or undue influence, procures or obtains, whether
directly or indirectly, the execution by that other
person of a certificate under this Act, forfeits any
interest under the will, instrument or intestacy, as
the case requires.
(2) This section is in addition to any other
penalty in respect of the deception, fraud,
mis-statement or undue influence under any
other Act or law.
Division 4 - Copies of certificates and register of directions
10. Copies of refusal of treatment certificate
(1) A medical practitioner who witnesses a
refusal of treatment certificate for a person
in a hospital or nursing home must take
reasonable steps to ensure that a copy of the
refusal of treatment certificate applying to
that person --
(a) is placed with the person's patient
record kept by the hospital or nursing
home;
(b) is given to the chief executive of the
hospital or nursing home; and
(c) is given to the Registrar within 7 days of
a making of the certificate.
9
s.11 No. Directions for Medical Treatment 2005
1 A medical practitioner who witnesses a
refusal of treatment certificate for a person
who is not a patient in a hospital or nursing
home must take reasonable steps to ensure
that a copy of the refusal of treatment
certificate is--
(a) given to the general practitioner of that
person to be recorded as that person's
patient record; and
1 given to the Registrar within 7 days of
the making of the certificate.
11. Register of anticipatory directions
(1) The Minister must establish a register of
refusal of treatment certificates and
anticipatory directions made under this Act.
(2) The Minister must appoint a suitable person
as a Registrar to administer the register.
(3) The registrar must keep a register of any
refusal of treatment certificate given to the
registrar under section 10.
(4) A refusal of treatment certificate given to the
Registrar by a medical practitioner under
section 10 must be accompanied by the
prescribed fee.
(5) The Registrar must, at the request of a
medical practitioner responsible for the
treatment of a person for whom a refusal of
treatment certificate has been given to the
Registrar under section 9 or any other
person with a proper interest in the
treatment of that person, produce a copy of
the certificate for inspection by that medical
practitioner or other person.
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2005 Directions for Medical Treatment No. s.12
(6) A person who has given an anticipatory
direction may on application to the
Registrar have the direction registered in
the register.
(7) An application under subsection (6) must
be accompanied by:
(a) a copy of the direction; and
(b) a fee prescribed by regulation.
(8) The Registrar must, at the request of a
medical practitioner responsible for the
treatment of a person by whom a registered
direction was given or any other person
with a proper interest in a registered
direction produce a copy of the direction
for inspection by that medical practitioner
or other person.
PART 3- PROVISIONS GOVERNING MEDICAL
PRACTICE
Division 1 - Medical practice generally
12. Offence of medical trespass
(1) A medical practitioner must not, knowing
that a refusal of treatment certificate
applies to a person, undertake or continue
to undertake any medical treatment to
which the certificate applies, being
treatment for the condition in relation to
which the certificate was given.
11
s.13 No. Directions for Medical Treatment 2005
(2) A medical practitioner must not, knowing
that an anticipatory direction applies to a
person, undertake or continue to undertake
any medical treatment to which the
direction applies, being treatment for the
condition in relation to which the direction
was given.
Penalty: Fine not exceeding 100 penalty units.
13. Protection of medical practitioners
(1) A medical practitioner or a person acting
under the direction of a medical
practitioner who, in good faith and in
reliance on a refusal of treatment
certificate or an anticipatory direction,
refuses to perform or continue medical
treatment which he or she believes on
reasonable grounds has been refused in
accordance with this Act is not--
(a) guilty of misconduct or infamous
misconduct in a professional respect;
or
(b) guilty of an offence; or
(c) liable in any civil proceedings--
because of the failure to perform or
continue that treatment.
(2) For the purposes of this section a person
who acts in good faith in reliance on a
refusal of treatment certificate or an
anticipatory direction but who is not aware
that the certificate or direction has been
cancelled, is to be treated as having acted in
12
2005 Directions for Medical Treatment No. s. 14
good faith in reliance on a refusal of treatment
certificate or the anticipatory direction.
Division 2 - Emergency medical treatment and care of people
who are dying
14. Emergency medical treatment
(1) A medical practitioner may lawfully
administer medical treatment to a person
if--
(a) the person is incapable of consenting;
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
person; and;
(c) the person has not, to the best of the
medical practitioner's knowledge,
refused to consent to the treatment or
registered an anticipatory direction.
15. The care of people who are dying
1 A medical practitioner responsible for the
treatment or care of a person in the terminal
phase of a terminal illness, or a person
participating in the treatment or care of the
person under the medical practitioner's
supervision, incurs no civil
13
s.15 No. Directions for Medical Treatment 2005
or criminal liability by administering
medical treatment with the intention of
relieving pain or distress--
(a) with the consent of the person; and
(b) in good faith and without negligence;
and
(c) in accordance with proper professional
standards of palliative care, even
though an incidental effect of the
treatment is to hasten the death of the
person.
(2) A medical practitioner responsible for the
treatment or care of a person in the
terminal phase of a terminal illness, or a
person participating in the treatment or
care of the person under the medical
practitioner's supervision, is, in the
absence of an express direction by the
person or the person's representative to the
contrary, under no duty to use, or to
continue to use, life sustaining measures in
treating the person if the effect of doing so
would be merely to prolong life in a
moribund state without any real prospect
of recovery or in a persistent vegetative
state.
(3) For the purposes of the law of the State--
(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;
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2005 Directions for Medical Treatment No. s. 16
(b) the non-application or discontinuance
of life sustaining measures in
accordance with subsection (2) does
not constitute an intervening cause of
death.
16. Act does not authorize assisting in suicide
(1) This Act does not authorize the
administration of medical treatment for the
purpose of causing the 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.
PART 4- MISCELLANEOUS AND SUPPLEMENTAL
17. Regulations
(1) The Governor may make regulations for
the purposes of this Act.
(2) Without limiting the generality of
subsection (1), the Governor may make
regulations as to fees payable to the
Registrar for lodging refusal of treatment
certificates and anticipatory directions.
18. Administration of Act
Until provision is made in relation to this
Act by Order under section 4 of the
Administrative Arrangements Act 1990--
15
s.18 No. Directions for Medical Treatment 2005
(a) the administration of this Act is
assigned to the Minister for Justice and
Industrial Relations; and
(b) the department responsible to that
Minister in relation to the
administration of this Act is the
Department of Justice.
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2005 Directions for Medical Treatment No. sch. 1
SCHEDULE 1
FORM 1- REFUSAL OF TREATMENT CERTIFICATE
Section 4
We certify that we are satisfied that--
(a) that.......................................(name
of person) has clearly expressed or
indicated a decision, in relation to a
current condition, to refuse--
*medical treatment generally;
or
*medical treatment being...................
(specify particular kind of medical treatment);
(b) that the person's decision is made
voluntarily and without inducement or
compulsion;
(c) that the person has been informed about
the nature of his/her current condition to
an extent which is reasonably sufficient
to enable him/her to make a decision
about whether or not to refuse medical
treatment generally or of a particular kind
(as the case requires) and he/she has
appeared to understand that information;
and
(d) that the person is of sound mind and has
attained the age of 18 years.
* Delete whichever is not applicable
17
sch. 1 No. Directions for Medical Treatment 2005
Dated:
Signed...........................(Medical Practitioner)
Signed.............................(Another Person)
The person's current condition is
..............................................(describe condition)
Dated:
Signed..................................................
To be signed by the same medical practitioner
Verification to be completed by patient, if
physically able to do so.
In relation to my current condition, I refuse--
*medical treatment generally;
or
*medical treatment being
................................................
(specify particular kind of medical
treatment);
I give the following instructions as to palliative
care:
Dated:
Signed..................................... (Person)
*Delete whichever is not applicable
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2005 Directions for Medical Treatment No. sch. 1
NOTICE OF CANCELLATION (for completion
where a patient cancels the certificate under
section 6 of the Directions for Medical Treatment
Act 2005
I cancel this certificate.
Dated:
Signed.................................... (Person)
or
The patient clearly expressed or indicted a
decision to cancel this certificate on (Date).
Signed
.........................................................
(Person witnessing patient's decision)
NOTE: "Medical treatment" means the carrying
out of--
(a) an operation; or
(b) the administration of a drug or other like
substance; or
(c) any other medical procedure--
but does not include palliative care.
"Palliative care" includes--
(a) the provision of reasonable medical
procedures for the relief of pain, suffering
and discomfort; or
(b) the reasonable provision of food and water.
The refusal of palliative care is not covered by
the Directions for Medical Treatment Act 2005.
19
sch. 1 No. Directions for Medical Treatment 2005
FORM 2- ANTICIPATORY DIRECTION
Section 5
Part 1 -- Anticipatory direction
1 I................................................
.................................................
.................................................
(insert full name, address and occupation)
direct that if, at some future time, I am--
(a) in the terminal phase of a terminal
illness, or in a persistent vegetative state;
and
(b) incapable of making decisions about my
own medical treatment, effect is to be
given to the following expression of my
wishes..........................................
..................................................
...................................................
[The person by whom the direction is
given must include here a statement of
his or her wishes. The statement should
clearly set out the kinds of medical
treatment that the person wants, or the
kinds of medical treatment that the
person does not want, or both. If the
consent, or refusal of consent, is to
operate only in certain circumstances, or
on certain conditions, the statement
should define those circumstances or
conditions].
2. This direction is given under the
Directions for Medical Treatment Act
2005.
..................................................
[signature of person giving direction]
Dated this day of 200
20
2005 Directions for Medical Treatment No. sch. 1
Part 2 -- Witness Certificate
I ............................................................................
..............................................................................
..............................................................................
[insert full name, address of the witness and the
qualifications by virtue of which the witness is
an authorised witness under the Directions for
Medical Treatment Act 2005]
Certify that the person whose signature appears
above--
(a) signed this direction in my presence; and
(b) appears to understand the nature and
effect of the direction.
21