GUARDIANSHIP AND MANAGEMENT OF PROPERTY ACT 1991 - SECT 34 Guardian may consent to protected person's participation in medical

GUARDIANSHIP AND MANAGEMENT OF PROPERTY ACT 1991 - SECT 34

    (1)     This section applies if—

        (a)     a guardian is appointed for a person (a protected person ); and

        (b)     the guardian is given the power to give, for the protected person, a consent required for a medical procedure or other treatment under section 7 (4) (e); and

        (c)     the guardian is considering whether to consent to the protected person participating in medical research.

    (2)     The guardian may consent to the protected person participating in medical research only if—

        (a)     the research is approved; and

        (b)     the protected person is not likely to regain decision-making capacity before the latest time that the protected person may meaningfully participate in the research; and

Note     An independent doctor must assess the likelihood of the principal regaining decision-making capacity within the time mentioned (see s 36).

        (c)     the guardian is satisfied on reasonable grounds that—

              (i)     the research relates to the diagnosis, maintenance or treatment of a condition that the protected person has or has had or to which the protected person has a significant risk of being exposed; and

              (ii)     the research may result in benefit to the protected person or others with the condition; and

              (iii)     the potential benefit to the protected person, or others with the condition, of participating in the research outweighs any potential risk or inconvenience to the protected person, or any potential adverse impact on the protected person's quality of life; and

              (iv)     participating in the research will not unduly interfere with the protected person's privacy.

Note 1     A guardian's power to consent to a protected person participating in medical research must be exercised in a way that is consistent with any existing health direction made by the protected person (see Medical Treatment (Health Directions) Act 2006

, s 18).

Note 2     In considering whether to consent to a protected person participating in medical research, a guardian must follow the decision-making principles (see s 4).

    (3)     If the protected person was participating in medical research before the protected person became a person with impaired decision-making capacity, it is presumed the protected person's wishes include to continue participating in the research.

Note     Under the decision-making principles, the protected person's wishes, as far as they can be worked out, must be given effect to (see s 4 (2)).

    (4)     If a guardian makes an application, the ACAT must give an opinion or advice to assist the guardian to decide whether to give consent under subsection (2).