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GUARDIANSHIP AND MANAGEMENT OF PROPERTY AMENDMENT BILL 2008
2008
LEGISLATIVE
ASSEMBLY FOR THE AUSTRALIAN CAPITAL
TERRITORY
GUARDIANSHIP
AND MANAGEMENT OF PROPERTY
AMENDMENT BILL
2008
EXPLANATORY
STATEMENT
Presented
by
Mr Simon Corbell
MLA
Attorney General
GUARDIANSHIP AND MANAGEMENT OF
PROPERTY
AMENDMENT BILL
2008
Overview of the
Bill
The Guardianship and Management of Property
Amendment Bill 2008 (the Bill) amends the Guardianship and Management of
Property Act 1991 (the Guardianship legislation) and inserts a new part, 2A,
to provide for a scheme of health attorneys.
Where a person who has impaired
decision-making ability and has no appointed attorney or guardian is in need of
medical treatment, but lacks the capacity to consent to that treatment, a health
professional (that is, a doctor or dentist), may seek that consent from a health
attorney.
Health attorneys may be domestic
partners, carers, close relatives or close friends of the person who needs
medical treatment, but in any event must be able to represent the views of the
patient. The Bill provides for a process, in addition to existing processes,
for obtaining consent to medical treatment on behalf of adults with impaired
decision-making capacity (for instance, someone who is in a coma following a car
accident). The Guardianship legislation refers to such a person as a
“protected person”.
Under current
ACT law, consent to medical treatment may be provided by an attorney appointed
under an enduring power of attorney made by the protected person before he or
she lost decision-making ability. If there is no attorney, a person may apply
to the Guardianship and Management of Property Tribunal (the Tribunal) to be
appointed as the person’s guardian, and can consent in that capacity.
However legislation in other jurisdictions allows close relatives and friends to
consent to medical treatment on behalf of the patient. The Bill removes this
gap in ACT law and brings it in to line with other jurisdictions.
Under this Bill, a health attorney must have a
close relationship with the protected person, and be able to represent their
views. The Bill provides for an order of priority among health attorneys when
all things are equal, but overall the most appropriate attorney will be that
person best able to represent the protected person’s wishes.
Where a health professional believes on
reasonable grounds that a person is a protected person and needs, or is likely
to need, medical treatment, the health professional may seek consent from a
health attorney whom he or she believes on reasonable grounds is best able to
represent the views of the protected person. Both the health professional and
health attorney must follow the decision-making principles under the
Guardianship legislation. These principles are designed to ensure that the
wishes and best interests of the protected person are considered and respected.
Under the Bill, a health professional is
obliged to give specified information to a health attorney before seeking the
required consent. Where the health attorney identified by the health
professional refuses consent, or where other health attorneys object to that
attorney’s decision, the health professional must refer the matter to the
Public Advocate. Where medical treatment based on a health attorney’s
consent continues over a period of 6 months, the health professional must inform
the Public Advocate of the stuation, in order to ensure ongoing independent
review of the rights of the protected person.
The Bill provides that a health attorney
acting in good faith will be protected from civil and criminal liability. It
also provides protection for a health professional who relies on consent (or
refusal) from a health attorney. Nevertheless, the health professional will not
be relieved from liability if he or she would have been subject to liability had
the protected person not had impaired decision-making ability, and had the
medical treatment been carried out with that person’s consent.
Human Rights Act
2004
Section 10(2) of the Human Rights Act 2004
(the HR Act) provides that a person has a right not to be subjected to medical
or scientific experimentation or treatment without his or her free consent.
Section 28 of the HR Act provides that human
rights may be subject only to such reasonable limits set by Territory laws that
can demonstrably be justified in a free and democratic society. According to
section 28, in deciding whether a limit is reasonable, all relevant factors must
be considered, including the following:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its
purpose;
(e) any less restrictive means reasonably available to
achieve the purpose the limitation seeks to achieve.
Enabling a health attorney to consent to medical
treatment for a person is a limit on this right. A person with impaired
decision-making ability is unable to give free consent to medical treatment, and
therefore, substituted consent will be needed if they are to be afforded medical
treatment. The health attorneys’ scheme does not change the existing
options for substituted consent to be obtained from an attorney appointed under
an enduring power of attorney by the person, or by a guardian appointed for the
person. This scheme is an additional, simple option in ordinary cases where
there is no guardian or enduring power of attorney, and an appropriate health
attorney is available.
The scheme is also be consistent with the general
expectation in the community that where a person lacks capacity, a person close
to him or her would be involved in decisions relating to provision of their
medical treatment.
Domestic partners, carers, close relatives and close
friends are likely to be those best placed to understand the wishes, views and
feelings of the protected person. On this basis, the limitation placed on a
person’s right not to be given medical treatment without their free
consent is the least restrictive possible.
The Bill provides that a health professional must give
specified medical treatment options information to a health attorney, including
information on decision-making principles; that the provision of information to
a health attorney and the consent will need to be in an approved form (if a form
is approved for that purpose); that where there is an objection to a health
attorney or disagreement among health attorneys about consent, the health
professional must refer the matter to the Public Advocate; that a health
professional must inform the Public Advocate if the treatment on the basis of
consent obtained from a health attorney continues for 6 months; and that the
liability of a health professional is preserved in circumstances where the
health professional would have been liable had the person had capacity and had
consented to treatment.
The provision for an approved form for information and
consent, and the provision for six- monthly reports to the Public Advocate, are
consistent with the UN Convention on the Rights of Persons with a Disability.
These safeguards, including the role of the Public Advocate, and the
availability of recourse to the guardianship system, ensures that the limitation
on the section 10(2) right is reasonable and is the least restrictive
available.
Clause notes
Clause 1 Name of
Act
This clause provides that the name of the Act is the
Guardianship and Management of Property Amendment Act
2008.
Clause 2
Commencement
Clause 2 provides that the Act commences on a day to be
fixed by the Minister by written
notice.
Clause 3 Legislation
amended
This clause states that the Act
amends the Guardianship and Management of Property Act 1991. In this
document, this legislation is also referred to as the Guardianship legislation.
Clause 4 Section
6A
This clause substitutes a new section
6A. This new section is the redrafting of current section 6A, with a change to
refer to the new section 32A.
New section
6A Limits on finding impaired decision-making ability
The Guardianship legislation provides for the
appointment of a guardian for a protected person, or of a manager to manage the
person’s property.
A protected person is a
person with impaired decision-making ability (section 4(1), Guardianship
legislation). Section 5 of the Guardianship legislation provides that a person
has impaired decision-making ability “if the person’s
decision-making ability is impaired because of a physical, mental, psychological
or intellectual condition or state, whether or not the condition or state is a
diagnosable illness.”
The new section 6A provides that a person should not be
treated as a protected person merely because:
(i) the person is eccentric; or
(ii) he or she does not express a particular political
or religious opinion; or
(iii) the person is of a particular sexual orientation
or expresses a particular sexual preference; or
(iv) the person engages or has engaged in illegal or
immoral conduct; or
(v) the person takes or has taken drugs, including
alcohol (but any effects of the drug may be taken into
account).
Clause 5 Section 6A (as
substituted)
Clause 5 relocates section 6A to part
1A.
Clause 6 New part
2A
This clause inserts part 2A.
Part 2 A Consent to medical
treatment without formal representation
New section 32A Definitions
– pt 2A
New section 32A defines the terms used in part 2A.
A health professional means a doctor or a dentist. As provided in new section
32B, a child (i.e. a person under 18 years of age) and a person with impaired
decision-making ability cannot be a health attorney.
New section 32B Who is a
health attorney for a protected
person?
New section 32B lists the following people in order
of priority as health attorneys:
(a) the protected
person’s domestic partner;
(b) the protected
person’s carer;
(c) a close relative or
close friend of the protected person.
A child
(that is, a person below the age of 18 years) or a person with impaired
decision-making ability cannot be a health attorney. New section 32A defines
the “domestic partner” and “close relative or close
friend” as follows:
• a domestic
partner is a domestic partner who is in a close and continuing relationship with
the protected person;
• a close relative or
close friend is a relative or someone else in a close personal relationship with
the protected person who has frequent contact with the person and a personal
interest in the person’s welfare, and does not receive remuneration or
reward for the contact.
“carer” is
defined in new section 32C.
New section 32A
defines “protected person” for the purpose of part 2A. The
protected person is an adult who has impaired decision-making ability which
makes him or her unable to consent to medical treatment where (a) there is no
attorney appointed by him or her under an enduring power of attorney to consent,
and (b) there is no guardian appointed with authority to consent.
‘Medical treatment’ includes a
medical procedure or treatment, dental treatment, and a series of procedures or
a course of treatments, but does not include a ‘prescribed medical
procedure’ (see, new section 32A).
A
prescribed medical procedure is defined in the Guardianship legislation to mean
the following:
(a) an abortion; or
(b) reproductive sterilisation; or
(c) a hysterectomy; or
(d) a medical procedure concerned with contraception;
or
(e) removal of non-regenerative tissue for
transplantation to the body of another living person; or
(f) treatment for mental illness, electroconvulsive
therapy or psychiatric surgery; or
(g) any other medical or surgical procedure prescribed
for this definition.
New section 32C Who is a
carer for a protected
person?
A person who is a carer is defined for the purposes
of Part 2A. The two limbs of the definition are that a carer (a) is a person
for the purposes of the Guardianship legislation generally, and (b) gives, or
arranges for the giving of, care and support in a domestic context to the
protected person and does not receive remuneration or reward for that service.
A carer generally under the Guardianship legislation is defined in section 6 of
the legislation. According to that definition, a person is a carer of someone
(the dependant) where the dependant is dependent on the person for ongoing care
and assistance; and the care is not a commercial arrangement or substantially
commercial arrangement. For a carer to be a health attorney, the carer should
also satisfy item (b) stated above. A carer may or may not receive a
carer’s pension.
However, a person
giving, or arranging for the giving of, care and assistance to the protected
person in a hospital, nursing home, group home, boarding-house, hostel or
similar place, is not a carer for the purposes of the Act.
New section 32D Health attorney
may give consent
New section 32D provides that if a health
professional believes on reasonable grounds that a person is a protected person,
and the person needs, or is likely to need, medical treatment, the health
professional may ask for consent that health attorney whom the health
professional believes on reasonable grounds is best able to represent the views
of the protected person. Note 1 states that if the Chief Executive approves a
form for consent under the new section 75A, then that form must be used.
If a health attorney gives consent after
receiving information under new section 32G (Health professional must give
information to health attorney), the health professional need not obtain any
other consent for the medical treatment.
New section 32E Decision-making
principles apply
New section 32E obliges both a health professional
and a health attorney to follow legislative decision-making principles when
making a decision under part 2A. These principles are set out in section 4 of
the Guardianship legislation and are as
follows:
(a) the protected person’s
wishes, as far as they can be worked out, must be given effect, unless making
the decision in accordance with the wishes is likely to significantly adversely
affect the protected person’s
interests;
(b) if giving effect to the protected
person’s wishes is likely to significantly adversely affect the
person’s interests—the decision-maker must give effect to the
protected person’s wishes as far as possible without significantly
adversely affecting the protected person’s
interests;
(c) if the protected person’s
wishes cannot be given effect to at all—the interests of the protected
person must be promoted;
(d) the protected
person’s life (including the person’s lifestyle) must be interfered
with to the smallest extent necessary;
(e) the
protected person must be encouraged to look after himself or herself as far as
possible; and
(f) the protected person must be
encouraged to live in the general community, and take part in community
activities, as far as possible.
New section 32F Decision about
health attorney
New section 32F provides that in considering whom is
best able to represent the views of the protected person, the health
professional must consider the priority order for health attorneys (provided in
new section 32B) and may take into account any circumstance that the health
professional believes on reasonable grounds is relevant and, in particular, how
readily available is a particular health attorney. The health professional need
not consider a health attorney whom the health professional believes on
reasonable grounds is not a suitable person to give consent to medical treatment
for the protected person. In such a case, the health professional must record
the reasons for their belief that the health attorney is not
suitable.
New section 32G Health
professional must give information to health
attorney
New section 32G lists the matters
about which a health professional must give information to a health attorney.
The purpose for this is to ensure that the decision to give or refuse consent is
fully informed.
New section 32H Referring
matters to the public advocate – refusal of
consent
New section 32H provides that if
the requested health attorney refuses to give consent for medical treatment for
the protected person, the health professional must refer the matter to
the Public Advocate. The Public Advocate must take no further action if he or
she considers the refusal to be reasonable, or otherwise may apply to the
Guardianship Tribunal for an order to be appointed as a guardian for the
protected person.
New section
32I Referring matters to the public advocate – disagreement between health
attorneys
New section 32I provides that if
a health professional becomes aware before he or she obtains the consent of a
selected health attorney that one or more of the other health attorneys objects
to the giving of consent, the health professional must refer the matter to the
Public Advocate, who may try to assist the health attorneys to reach agreement
about consent, or apply to the Guardianship Tribunal to be appointed as a
guardian for the protected person.
This
provision clarifies that the health professional is not required to seek the
views of other health attorneys for the protected person before obtaining
consent from the health attorney who the health professional believes on
reasonable grounds is best able to represent the views of the protected person.
New section 32J Notice to public advocate
– long term treatment
There may be
circumstances where a health attorney consents to a course of treatment on
behalf of the protected person which continues for a lengthy period. Under this
provision, if the treatment continues for more than six months, the treating
health professional is required to inform the Public
Advocate.
New section 32K Protection of
health attorney from liability
New section
32J protects a health attorney from civil or criminal liability in relation to a
decision made in good faith to consent or not consent to treatment for the
protected person.
New section 32L Protection
of health professional from liability
New
section 32L protects a health professional from civil or criminal liability in
relation to the health professional’s reliance, in good faith, on consent
given by a health attorney or the person the health professional believes on
reasonable grounds is a health attorney.
New
section 32M Preservation of liability
New
section 32M provides that part 2A does not relieve a health professional of
liability in relation to the provision of medical treatment if the health
professional would have been subject to the liability had the protected person
not had impaired decision-making ability and had consented to the treatment.
New section 32N Urgent medical
treatment
New section 32N preserves a
health professional’s common law right to provide urgent medical treatment
without consent.
Clause 7 Section 67
heading
Clause 7 substitutes the heading of
section 67 with “Temporary appointments”. The current heading is
“Emergency appointments”.
Section 67
deals with temporary appointment of a guardian or manager, not with an emergency
appointment.
Clause 8 New section
75A
Clause 8 inserts new section
75A.
New section 75A Approved
forms
New section 75A provides that the
Chief Executive may approve forms for the Guardianship legislation, and that if
there is an approved form for a purpose that form must be used for that purpose.
An approved form is a notifiable
instrument.
Clause 9 Dictionary, definition
of carer
Clause 8 clarifies that
section 6 defines carer for the Guardianship legislation generally, and section
32C defines that term for part 2A (Consent to medical treatment without formal
representation).
Clause 10 Dictionary, new
definitions
Clause 10 inserts new
definitions in the dictionary.
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