Advance Care Directive - Dispute Resolution
If a person has made an Advance Care Directive (ACD) and there is a disagreement about the making or revoking of the ACD, or a health decision that has to be made for that person, the Public Guardian can help in providing preliminary assistance by providing advice on rights and obligations under the Guardianship and Administration Act, or we can help to resolve disputes through mediation.
Advance Care Directives
An ACD is a set of instructions about health care and treatment. These instructions include details of the treatment that you want to receive or treatment that you do not want to receive in the future.
It is an opportunity to write down your wishes, preferences and directions, in advance, in case you lose the ability to make and communicate these decisions yourself.
An ACD allows your health care professionals, and others who support you, to understand what is important to you and what you do and don’t want. The ACD only comes into effect if you become unable to make decisions about health care and treatment, either permanently or temporarily.
Please refer to the attached Information Sheet for more information about Advance Care Directives.
About the Dispute Resolution Service
The ACD Dispute Resolution Service is a service provided by the Office of the Public Guardian. We help people to work through disagreements about advance health care decisions by:
- helping to ensure that all parties are aware of their rights and obligations in relation to giving and
- facilitating full and open discussion between the parties to help identify and resolve issues in dispute
- canvassing options that may remove the need for more formal proceedings in the Tasmanian Civil
and Administrative Tribunal
Our Dispute Resolution Service is:
- Human-Rights based
Disputes may be resolved through preliminary assistance, education, or mediation. Mediation is a collaborative, voluntary, non-coercive, problem-solving process. Throughout mediation an independent practitioner assists the participants to come together, discuss the issues in dispute and find acceptable solutions to those.
Time frames can vary depending on the complexity and urgency of the matter.
If agreement is reached between the parties through mediation, the Public Guardian will:
- document the agreements made through the dispute resolution process;
- ensure all parties involved in the dispute sign a copy of the agreements reached;
- provide a copy to the Tasmanian Civil and Administrative Tribunal so that it can be attached to the copy of the ACD in the register.
It is important to note that mediation won’t always be appropriate due to several factors, including the timeframe that the decision has to be made in. Mediation will not always bring a resolution to the dispute and matters may have to be referred to the ‘Tribunal. At any time, the Public Guardian may bring mediation to a close if in their opinion the matter is best dealt with by the Tribunal or at the request of a party to a mediation.
The Tribunal is able to settle disputes in relation to ACDs. On application, the Tribunal may review a matter dealt with by the Public Guardian and cancel, vary or revoke an agreement. The Tribunal also has the power to make binding directions in relation to an ACD, including in relation to:
- whether the person making the ACD did or did not have decision-making ability to make the ACD;
- whether an ACD is valid; or
- whether a person has authority to make a decision in relation to an ACD.
Who can apply for Dispute Resolution?
The Guardianship and Administration Act, 1995 outlines who is able to request Dispute Resolution through the Office of the Public Guardian.
Individuals who are able to apply include:
- the person who gave the Advance Care Directive.
- an authorised decision-maker or person responsible for the person who gave the Advance Care Directive.
- a health practitioner or health service giving, or proposing to give, health care to the person.
- a party to a mediation held in respect of an advance care directive.
- any other person who the Public Guardian assesses as having a proper interest in the life of the person and the dispute.
Applying for Dispute Resolution
You are eligible to apply for Dispute Resolution if:
- a person has made an Advance Care Directive
- there is a dispute about the making or revoking of the Advance Care Directive
- there is a dispute about health decisions included in the Advance Care Directive
If you need assistance, a verbal application can be made over the phone or in person at the Office of the Public Guardian. You can contact the office via phone: (03) 6165 3444
Your application can be lodged by returning it to the Office of the Public Guardian via:
Post: GPO Box 825, Hobart, TAS, 7001
Fax: (03) 61730268
In some instances, mediation will not always bring a resolution to the dispute and matters may have to be referred to the Tribunal. At any time, the Public Guardian may bring mediation to a close and make application to TASCAT, if in their opinion the matter is best dealt with by the Tribunal or at the request of a party to a mediation.
Further information relating to the role of TASCAT in making determinations about ACDs can be found via the Tribunal's Fact Sheet - Advance Care Directive
Do I have to attend dispute resolution / mediation?
No, it is voluntary to participate in the process.
All participants are encouraged to remain involved in the mediation process once it has begun, unless it is unsafe to do so, until an agreement is reached. However, mediation is as a voluntary process and participants can leave at any time. If a participant wishes to withdraw from the process the mediator can speak with her/him privately to ascertain any issues that may be able to be satisfactorily dealt with to enable the participant to remain in the process. Following this, if the person still wishes to leave the process, the private meeting would enable the mediator to ascertain the views of the person leaving and, with their permission, relay these to other participants in the mediation session so that they can be taken into consideration when agreements are being reached.
Is the process confidential?
Yes, the Dispute Resolution process is bound by strict confidentiality rules. The Guardianship and Administration Act states that evidence of anything said or done in the course of mediation is not able to be share, unless consent of all parties is provided.
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