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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Guardianship and Administration (Further
Amendment) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Principal Act 2
PART 2--MEDICAL RESEARCH PROCEDURES 3
4. Definitions and objects 3
5. Functions of Public Advocate 5
6. Consent to medical research procedures 6
7. New section 42E substituted 8
42E. Consent of Tribunal to special procedure 8
8. Further amendments to Part 4A 8
9. New Division 6 inserted in Part 4A 9
Division 6--Medical Research Procedures 9
42P. Introduction and outline of Division 9
42Q. Step 1--Approval of relevant research project 10
42R. Step 2--Is patient likely to recover within a reasonable
time? 11
42S. Step 3--Consent of person responsible 12
42T. Step 4--Procedural authorisation 13
42U. Best interests 18
42V. Applications to Tribunal 19
42W. Person responsible may seek advice 21
42X. Guidelines for medical research procedures 22
42Y. Offences 22
42Z. Protection of registered practitioner 23
10. Consequential amendments 24
11. New section 88 inserted 25
88. Medical research procedures 25
12. Consequential amendment of Mental Health Act 1986 26
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Clause Page
PART 3--MISCELLANEOUS AMENDMENTS 27
13. Definition 27
14. Delegation by Public Advocate 27
15. Guardianship orders--wishes of proposed represented person 27
16. Appointment of enduring guardian 27
17. Appointment of administrator--wishes of proposed
represented person 28
18. New section 47B inserted 29
47B. Payment of costs and expenses to administrator or
former administrator from estate 29
19. Application for rehearing 30
20. New section 60B substituted 30
60B. Parties and notice 30
21. New section 67 inserted 31
67. Effect of setting aside administration order on
previous actions of administrator 31
22. New section 86A inserted 31
86A. Enduring guardians 31
23. Acting Public Advocate 32
24. Form for appointment of enduring guardian 32
ENDNOTES 36
ii
551347B.I1-15/11/2005 BILL LA INTRODUCTION 15/11/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Guardianship and Administration Act 1986 regarding
consent to medical research procedures and for other purposes, to
make consequential amendments to the Mental Health Act 1986 and
for other purposes.
Guardianship and Administration
(Further Amendment) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Bill is--
(a) to amend the Guardianship and
Administration Act 1986 to--
5
1
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Act No.
Part 1--Preliminary
s. 2
(i) establish a new process for obtaining
consent to medical research procedures
for patients;
(ii) make miscellaneous amendments to
improve the operation of the Act;
5
(b) to make consequential amendments to the
Mental Health Act 1986.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
10
(2) If a provision of this Act does not come into
operation before 1 November 2006, it comes into
operation on that day.
3. Principal Act
See: In this Act, the Guardianship and
15 Act No.
Administration Act 1986 is called the Principal
58/1986.
Reprint No. 6 Act.
as at
1 January
2003
and
amending
Act Nos
75/2003 and
108/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
__________________
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s. 4
PART 2--MEDICAL RESEARCH PROCEDURES
4. Definitions and objects
(1) In section 3(1) of the Principal Act--
(a) insert the following definitions--
' "human research ethics committee"
5
means--
(a) a human research ethics
committee established in
accordance with the requirements
of the National Statement; or
10
(b) an ethics committee established
under the by-laws of a public
hospital, public health service,
denominational hospital or multi-
purpose service (within the
15
meaning of the Health Services
Act 1988);
"medical research procedure" means--
(a) a procedure carried out for the
purposes of medical research,
20
including, as part of a clinical
trial, the administration of
medication or the use of
equipment or a device; or
(b) a procedure that is prescribed by
25
the regulations to be a medical
research procedure for the
purposes of this Act--
but does not include--
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(c) any non-intrusive examination
(including a visual examination of
the mouth, throat, nasal cavity,
eyes or ears or the measuring of a
person's height, weight or vision);
5
or
(d) observing a person's activities; or
(e) undertaking a survey; or
(f) collecting or using information,
including personal information
10
(within the meaning of the
Information Privacy Act 2000)
or health information (within the
meaning of the Health Records
Act 2001); or
15
(g) any other procedure that is
prescribed by the regulations not
to be a medical research procedure
for the purposes of this Act;
"National Statement" means--
20
(a) the National Statement on Ethical
Conduct in Research Involving
Humans published by the National
Health and Medical Research
Council in 1999 as in force from
25
time to time; or
(b) any superseding document
published by the National Health
and Medical Research Council
that covers the same subject
30
matter;
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"relevant human research ethics
committee" for a medical research
procedure means the human research
ethics committee responsible for
approving the relevant research project;
5
"relevant research project" for a medical
research procedure means the research
project for the purposes of which the
procedure is, or is to be, carried out;
"working day" means a day other than a
10
Saturday, a Sunday or a public holiday
appointed under the Public Holidays
Act 1993.';
(b) in the definition of "medical or dental
treatment", after paragraph (d) insert--
15
"(da) a medical research procedure; or";
(c) in the definition of "special procedure",
paragraph (b) is repealed.
(2) Section 3(3) of the Principal Act is repealed.
(3) For section 4(1)(f) of the Principal Act
20
substitute--
"(f) to provide for consent to special procedures,
medical research procedures and medical and
dental treatment on behalf of persons
incapable of giving consent to those
25
procedures or treatment; and".
5. Functions of Public Advocate
In section 16(1)(ja) of the Principal Act, after
"special procedure" insert "or medical research
procedure".
30
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6. Consent to medical research procedures
(1) In the Principal Act--
(a) in section 36(1)(b) and (2), after "special
procedure" insert ", a medical research
procedure";
5
(b) in section 37(1)--
(i) after "in relation to" (where secondly
occurring) insert "a proposed medical
research procedure or";
(ii) in paragraphs (b), (c) and (d), before
10
"treatment" insert "procedure or";
(iii) in paragraph (e), after "in relation to"
insert "medical research procedures
that include the proposed procedure
or".
15
(2) After section 37(6) of the Principal Act insert--
'(7) For the purposes of sub-section (1)(h), if the
patient--
(a) is likely to be capable of giving consent
to the carrying out of a medical
20
research procedure, but not within a
reasonable time as determined in
accordance with section 42R(2); and
(b) objects to a relative referred to in
paragraphs (a) to (g) of the definition of
25
"nearest relative" in section 3(1) being
involved in decisions concerning the
patient that would include a medical
research procedure being carried out on
the patient--
30
that relative is taken not to be the nearest
relative of the patient.'.
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(3) At the end of section 39 of the Principal Act
insert--
"(2) Division 6 contains provisions for the giving
of consent in relation to the carrying out of a
medical research procedure on a patient.".
5
(4) In the Principal Act--
(a) in section 40, after "special procedure"
insert ", a medical research procedure";
(b) in section 41, after "dental treatment," insert
"medical research procedure";
10
(c) in section 42(a), after "section 42F" insert
", or to a medical research procedure";
(d) in section 42A(1)--
(i) for "or medical or dental treatment on a
patient without consent under this Part
15
if the practitioner believes on
reasonable grounds that the treatment"
substitute ", a medical research
procedure or medical or dental
treatment on a patient without consent
20
under this Part or authorisation under
section 42T if the practitioner believes
on reasonable grounds that the
procedure or treatment";
(ii) in paragraph (c), after "in the case of"
25
insert "a medical research procedure
or";
(e) in section 42A(2)--
(i) after "special procedure" insert
", a medical research procedure";
30
(ii) after "this Division" insert "and, in the
case of a medical research procedure,
section 42Q";
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(iii) in paragraph (c), for "battery."
substitute "battery; or";
(f) after section 42A(2)(c) insert--
"(d) guilty of an offence against
section 42G(1) or 42Y(1).".
5
7. New section 42E substituted
For section 42E of the Principal Act substitute--
"42E. Consent of Tribunal to special procedure
On hearing an application under this
Division, the Tribunal may consent to the
10
carrying out of a special procedure only if it
is satisfied that--
(a) the patient is incapable of giving
consent; and
(b) the patient is not likely to be capable,
15
within a reasonable time, of giving
consent; and
(c) the special procedure would be in the
patient's best interests.".
8. Further amendments to Part 4A
20
(1) In section 42G of the Principal Act--
(a) at the foot of sub-section (1) insert--
"Penalty: Imprisonment for 2 years or
240 penalty units or both.";
(b) in sub-section (2)(e), for "battery."
25
substitute "battery; or";
(c) after sub-section (2)(e) insert--
"(f) guilty of an offence against sub-
section (1).".
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(2) After section 42N(6) of the Principal Act insert--
"(7) An application cannot be made, and the
Tribunal cannot make any order, under this
section in relation to a medical research
procedure.
5
Note: Sections 42V, 42W and 42X provide for the
Tribunal's jurisdiction in relation to medical
research procedures.".
9. New Division 6 inserted in Part 4A
After Division 5 of Part 4A of the Principal Act
10
insert--
'Division 6--Medical Research Procedures
42P. Introduction and outline of Division
(1) This Division contains provisions for the
carrying out of a medical research procedure
15
on a patient.
Note: See section 36 for the definition of "patient".
(2) In essence, this Division provides a 4 step
process for authorising the carrying out of a
medical research procedure on a patient, as
20
follows--
(a) step 1 is to determine whether the
relevant research project is approved by
the relevant human research ethics
committee--see section 42Q;
25
(b) step 2 is to determine whether the
patient is likely to recover the capacity
to consent to the procedure within a
reasonable time--see section 42R;
(c) step 3 is to seek the consent of the
30
person responsible for the patient,
which only applies where allowed by
section 42R--see section 42S;
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(d) step 4 is procedural authorisation,
which only applies where allowed by
section 42R and the person responsible
cannot be ascertained or contacted--see
section 42T.
5
(3) Steps 2, 3 and 4 referred to in sub-section (2)
do not apply to the carrying out of a medical
research procedure under section 42A.
Note: Section 42A provides for the carrying out of a
10 medical research procedure without consent in
emergency situations.
(4) This Division also provides that--
(a) the Tribunal has jurisdiction in various
circumstances--see sections 42V, 42W
and 42X;
15
(b) offences may be committed by
registered practitioners who fail to
comply with the Division--see
section 42Y;
(c) registered practitioners who comply
20
with the Division are protected from
civil and criminal liability--see
section 42Z.
(5) This Division is subject to section 41, which
prohibits the carrying out of medical
25
treatment if a refusal of that treatment is in
force under the Medical Treatment Act
1988.
42Q. Step 1--Approval of relevant research
project
30
(1) Step 1 is to determine whether the relevant
research project has been approved by the
relevant human research ethics committee.
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(2) A medical research procedure must not be
carried out on a patient if the relevant
research project has not been approved by
the relevant human research ethics
committee.
5
(3) A medical research procedure must be
carried out in accordance with the relevant
human research ethics committee approval,
including any conditions of that approval.
42R. Step 2--Is patient likely to recover within
10
a reasonable time?
(1) Step 2 is to determine whether the patient is
likely to be capable, within a reasonable
time, of giving consent to the carrying out of
a medical research procedure.
15
(2) The reasonable time is the time by which,
given the nature of the relevant research
project, the procedure would need to be
performed on the patient, having regard to--
(a) the medical or physical condition of the
20
patient; or
(b) the stage of treatment or care; or
(c) other circumstances specific to the
patient.
(3) If a patient is likely to be capable, within a
25
reasonable time as determined in accordance
with sub-section (2), of giving consent to the
carrying out of a medical research procedure,
a registered practitioner must not carry out,
or supervise the carrying out of, the
30
procedure under the authority of a consent
under section 42S or procedural
authorisation under section 42T.
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(4) If a patient is not likely to be capable, within
a reasonable time as determined in
accordance with sub-section (2), of giving
consent to the carrying out of a medical
research procedure, a registered practitioner
5
may carry out, or supervise the carrying out
of, the procedure under the authority of a
consent under section 42S or procedural
authorisation under section 42T.
(5) Before, or as soon as practicable after,
10
carrying out, or supervising the carrying out
of, the medical research procedure, the
registered practitioner must state his or her
belief that, at the time of the procedure, the
patient is or was not likely to be capable of
15
giving consent within a reasonable time and
the reason for that belief in writing in the
patient's clinical records.
Note: This section does not apply to a medical research
20 procedure under section 42A--see section 42P(3).
42S. Step 3--Consent of person responsible
(1) Step 3 is to seek the consent of the person
responsible for the patient to the carrying out
of the medical research procedure on the
patient.
25
Note: This section does not apply to a medical
research procedure under section 42A--
see section 42P(3).
(2) The person responsible may consent to the
carrying out of a medical research procedure
30
on the patient.
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(3) The person responsible may only consent to
the carrying out of the procedure if he or she
believes that the carrying out of the
procedure would not be contrary to the best
interests of the patient.
5
(4) The consent must be consistent with the
requirements for consent, if any, specified in
the relevant human research ethics
committee approval for the relevant research
project or the conditions of that approval.
10
42T. Step 4--Procedural authorisation
(1) Step 4 is procedural authorisation for the
carrying out of the medical research
procedure on the patient, which applies only
if the person responsible for the patient
15
cannot be ascertained or contacted.
Note: This section does not apply to a medical
research procedure under section 42A--
see section 42P(3).
(2) A registered practitioner may carry out, or
20
supervise the carrying out of, a medical
research procedure on a patient without the
consent under section 42S of the person
responsible for the patient if--
(a) the patient is not likely to be capable,
25
within a reasonable time as determined
in accordance with section 42R(2), of
giving consent to the carrying out of the
procedure; and
(b) steps that are reasonable in the
30
circumstances have been taken--
(i) to ascertain whether there is a
person responsible and, if so, who
that person is; and
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(ii) if the person responsible is
ascertained, to contact that person
to seek his or her consent to the
proposed procedure under
section 42S--
5
but it has not been possible to ascertain
whether there is a person responsible or
who that person is or to contact that
person; and
(c) the practitioner believes on reasonable
10
grounds that inclusion of the patient in
the relevant research project, and being
the subject of the proposed procedure,
would not be contrary to the best
interests of the patient; and
15
(d) the practitioner does not have any
reason to believe that the carrying out
of the procedure would be against the
patient's wishes; and
(e) the practitioner believes on reasonable
20
grounds that the relevant human
research ethics committee has approved
the relevant research project in the
knowledge that a patient may
participate in the project without the
25
prior consent of the patient or the
person responsible; and
(f) the practitioner believes on reasonable
grounds that--
(i) one of the purposes of the relevant
30
research project is to assess the
effectiveness of the therapy being
researched; and
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(ii) the medical research procedure
poses no more of a risk to the
patient than the risk that is
inherent in the patient's condition
and alternative treatment; and
5
(g) the practitioner believes on reasonable
grounds that the relevant research
project is based on valid scientific
hypotheses that support a reasonable
possibility of benefit for the patient as
10
compared with standard treatment.
(3) Before, or as soon as practicable after, the
medical research procedure is carried out, the
practitioner supervising the carrying out of
the procedure (or, if there is no such person,
15
the practitioner carrying out the procedure)
must sign a certificate--
(a) certifying as to each of the matters set
out in sub-section (2); and
(b) stating that the person responsible
20
(if any) or the patient (if the patient
gains or regains capacity) will be
informed as required by sub-section (4).
(4) A registered practitioner involved in the
relevant research project must inform the
25
person responsible (if any) or the patient
(if the patient gains or regains capacity) as
soon as reasonably practicable of--
(a) the patient's inclusion in the relevant
research project; and
30
(b) the option to refuse consent for the
procedure to be continued and
withdraw the patient from future
participation in the project without
compromising the patient's ability to
35
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receive any available alternative
treatment or care.
(5) The registered practitioner supervising the
carrying out of the procedure (or, if there is
no such person, the registered practitioner
5
carrying out the procedure) must--
(a) forward a copy of the certificate
referred to in sub-section (3) to the
Public Advocate and the relevant
human research ethics committee as
10
soon as practicable (and in any event
within 2 working days) after
supervising the carrying out of, or
carrying out, the procedure; and
(b) ensure that the certificate is kept in the
15
patient's clinical records.
(6) If--
(a) the medical research procedure is a
procedure extending over a period
exceeding one month after a copy of
20
the certificate is forwarded to the Public
Advocate and the relevant human
research ethics committee under sub-
section (5); and
(b) the registered practitioner supervising
25
the carrying out of the procedure (or, if
there is no such person, the registered
practitioner carrying out the procedure)
believes on reasonable grounds that--
(i) the requirements of sub-sections
30
(2)(b) and (8) (if applicable) have
been met but the person
responsible has not been able to be
ascertained or contacted; and
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(ii) the patient has not gained or
regained the capacity to consent--
the practitioner must, at intervals of not more
than one month while the procedure
continues, sign a certificate, and forward a
5
copy to the Public Advocate and the relevant
human research ethics committee, certifying
that each of the matters set out in sub-
section (2) continue to apply.
(7) The registered practitioner supervising the
10
carrying out of the procedure (or, if there is
no such person, the registered practitioner
carrying out the procedure) must ensure that
each certificate under sub-section (6) is kept
in the patient's clinical records.
15
(8) If a medical research procedure is being
carried out on a patient under the authority of
this section, steps that are reasonable in the
circumstances must continue to be taken
(as the case requires)--
20
(a) to ascertain whether there is a person
responsible and, if so, who that person
is; and
(b) if the person responsible is ascertained,
to contact that person to seek his or her
25
consent to the proposed procedure.
Note: If the person responsible is contacted and is
willing and able to make a decision (see
section 37), section 42S applies. If the patient
30 gains or regains capacity to consent, his or her
consent must be sought, as he or she will no
longer be a person to which this Division
applies.
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42U. Best interests
(1) In this Division, for the purposes of
determining whether a medical research
procedure would or would not be contrary to
the best interests of a patient, the following
5
matters must be taken into account--
(a) the wishes of the patient, so far as they
can be ascertained; and
(b) the wishes of any nearest relative or
any other family members of the
10
patient; and
(c) the nature and degree of any benefits,
discomforts and risks for the patient in
having or not having the procedure; and
(d) any other consequences to the patient if
15
the procedure is or is not carried out;
and
(e) any other prescribed matters.
(2) For the purposes of sub-section (1)(b), if the
patient--
20
(a) is likely to be capable of giving consent
to the carrying out of a medical
research procedure, but not within a
reasonable time as determined in
accordance with section 42R(2); and
25
(b) objects to--
(i) a relative referred to in
paragraphs (a) to (g) of the
definition of "nearest relative" in
section 3(1); or
30
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(ii) another family member (other
than the patient's spouse or
domestic partner)--
being involved in decisions concerning
the patient that would include a medical
5
research procedure being carried out on
the patient--
that relative or family member is taken not to
be the nearest relative or a family member of
the patient.
10
42V. Applications to Tribunal
(1) An application may be made to the Tribunal
in relation to any matter, question or dispute
under this Division relating to the best
interests of a patient.
15
(2) An application may be made by--
(a) a person responsible; or
(b) a person who, in the opinion of the
Tribunal, has a special interest in the
affairs of the patient, including a
20
registered practitioner (if any).
(3) Despite sub-section (2)(b), a registered
practitioner who is involved in the relevant
research project cannot apply to the Tribunal
in relation to a refusal of the person
25
responsible for a patient to consent under
section 42S to the carrying out of a medical
research procedure on the patient.
(4) If an application is made under this section,
the patient is a party to the proceeding.
30
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(5) The Tribunal must give notice of an
application, of the hearing of the application
and of any order of the Tribunal in respect of
the application to--
(a) the Public Advocate; and
5
(b) any other person whom the Tribunal
considers has a special interest in the
affairs of the patient.
(6) On an application under this section, the
Tribunal--
10
(a) may make an order that for matters
relating to medical research procedures,
either generally or of a particular kind,
a person specified in the order is to be
the person responsible;
15
(b) may appoint a person as guardian of the
patient generally or for matters relating
to medical research procedures;
(c) may vary a guardianship order to make
provision for matters relating to
20
medical research procedures;
(d) may revoke, suspend or vary an
instrument appointing a person as the
enduring guardian to the extent that the
instrument relates to medical research
25
procedures;
(e) may make an order that any proposed
medical research procedure is or is not
contrary to the best interests of the
patient;
30
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(f) may make any orders or give any
directions it considers necessary to
resolve any conflict between persons
relating to the best interests of a patient;
(g) may make a declaration as to the
5
validity or effect of any decision
relating to medical research procedures;
(h) may give an advisory opinion in
relation to the best interests of a patient;
(i) may make any other orders it considers
10
to be in the best interests of the patient.
42W. Person responsible may seek advice
(1) The person responsible for a patient may
apply to the Tribunal for directions or an
advisory opinion on any matter or question
15
relating to the scope or exercise of his or her
authority to consent to a medical research
procedure on behalf of the patient.
(2) The Tribunal must give notice to any person
whom the Tribunal considers has a special
20
interest in the affairs of the patient of the
application, of the hearing of the application
and of any order, directions or advisory
opinion of the Tribunal in respect of the
application.
25
(3) The Tribunal may--
(a) give any directions or advisory opinion
it considers necessary;
(b) make any order it considers necessary.
(4) The Tribunal of its own motion may direct,
30
or give an advisory opinion to, the person
responsible for a patient in respect of any
matter.
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(5) An action does not lie against the person
responsible for a patient on account of an act
or thing done or omitted to be done by that
person in accordance with any order,
directions or advisory opinion of the
5
Tribunal made or given under this section
unless in representing the facts to the
Tribunal that person has been guilty of fraud,
wilful concealment or misrepresentation.
42X. Guidelines for medical research
10
procedures
The Tribunal may--
(a) in consultation with the Public
Advocate and the Secretary to the
Department of Justice; and
15
(b) with the approval of the Governor in
Council--
issue and make available to members of the
public guidelines to assist the person
responsible for a patient in determining
20
whether or not to consent to medical research
procedures in respect of the patient.
42Y. Offences
(1) Subject to section 42A, a registered
practitioner must not carry out, or supervise
25
the carrying out of, a medical research
procedure on a patient unless--
(a) the carrying out of the procedure is
allowed by section 42R and either the
person responsible for the patient has
30
given consent under section 42S or the
procedure is authorised under
section 42T; or
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(b) the carrying out of the procedure is
otherwise authorised by law.
Penalty: Imprisonment for 2 years or
240 penalty units or both.
(2) A registered practitioner must not sign a
5
certificate under section 42T(3) or (6) that
the practitioner knows to be false.
Penalty: 120 penalty units.
(3) A registered practitioner must not carry out,
or supervise the carrying out of, a medical
10
research procedure on a patient unless the
relevant research project has been approved
by the relevant human research ethics
committee.
Penalty: 240 penalty units.
15
42Z. Protection of registered practitioner
(1) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
a medical research procedure on a patient in
accordance with this Division in reliance
20
on--
(a) a consent given by another person
whom the registered practitioner
believed on reasonable grounds was
authorised to give such consent; or
25
(b) a purported consent given by another
person whom the registered practitioner
believed on reasonable grounds was
authorised to give such consent but was
not so authorised--
30
is not--
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
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(e) liable in any civil proceedings for
assault or battery; or
(f) guilty of an offence against
section 42Y(1).
(2) A registered practitioner who, in good faith,
5
carries out, or supervises the carrying out of,
a medical research procedure on a patient in
accordance with this Division without the
consent of another person and in the belief
on reasonable grounds that the requirements
10
of this Division have been complied with is
not--
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
(c) liable in any civil proceedings for
15
assault or battery; or
(d) guilty of an offence against
section 42Y(1).
(3) Nothing in this section affects any duty of
care owed by a registered practitioner to a
20
patient.'.
10. Consequential amendments
(1) For section 60A(6)(b) of the Principal Act
substitute--
"(b) an application under section 42V (except an
25
application in respect of which an order is
made under section 42V(6)(b) appointing a
guardian generally); or".
(2) At the end of section 80 of the Principal Act
insert--
30
"(2) Sub-section (1) does not apply to a
contravention of section 42Q(2).
Note: Section 42Y(3) creates an offence relating to
the matters covered in section 42Q(2).".
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(3) After section 82(1)(ca) of the Principal Act
insert--
"(cab) prescribing any procedure--
(i) to be a medical research procedure for
the purposes of this Act; or
5
(ii) not to be a medical research procedure
for the purposes of this Act; and
(cac) prescribing any matters to be taken into
account in determining whether a medical
research procedure would or would not be
10
contrary to the best interests of a person to
whom Part 4A applies; and".
11. New section 88 inserted
After section 87 of the Principal Act insert--
'88. Medical research procedures
15
(1) This Act, as in force immediately before the
commencement day, continues to apply on
and after that day in relation to any consent
or conferral of authority to consent to the
carrying out of a special procedure, being a
20
procedure carried out for the purposes of
medical research, given by the Tribunal that
was in force immediately before that day.
(2) Despite anything to the contrary in
paragraph (e) of section 42T(2), a registered
25
practitioner is taken to have complied with
that paragraph if he or she believes on
reasonable grounds that the relevant human
research ethics committee has given approval
for the relevant research project before the
30
commencement day in the knowledge that a
patient may participate in the project without
the prior consent of the patient.
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(3) In this section--
"commencement day" means the day on
which section 11 of the Guardianship
and Administration (Further
Amendment) Act 2005 comes into
5
operation.'.
12. Consequential amendment of Mental Health
Act 1986
(1) In section 83(1) of the Mental Health Act 1986,
after "special procedure" insert "or medical
10
research procedure".
(2) At the foot of section 83(1) of the Mental Health
Act 1986 insert--
"Note: Part 4A of the Guardianship and Administration
15 Act 1986 applies to the carrying out of a special
procedure or medical research procedure on persons
who are incapable of giving consent to that
procedure.".
__________________
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PART 3--MISCELLANEOUS AMENDMENTS
13. Definition
In section 3(1) of the Principal Act, in the
definition of "guardian", after "means" insert
"(except in section 58C(2))".
5
14. Delegation by Public Advocate
In section 18(1) of the Principal Act--
(a) for "other than--" substitute "other than this
power of delegation.";
(b) paragraphs (a) and (b) are repealed.
10
15. Guardianship orders--wishes of proposed
represented person
In the Principal Act--
(a) after section 22(2)(a) insert--
"(ab) the wishes of the proposed represented
15
person, so far as they can be
ascertained; and";
(b) in section 23(2)(a), after "person" insert
", so far as they can be ascertained".
16. Appointment of enduring guardian
20
(1) In section 35A(2)(c) of the Principal Act--
(a) after "execution of the instrument" insert
"by each of the appointor, the proposed
enduring guardian and the proposed
alternative enduring guardian (if any)";
25
(b) for sub-paragraph (iii) substitute--
"(iii) both of whom have witnessed the
execution of the instrument by the
appointor, the proposed enduring
guardian or the proposed alternative
30
enduring guardian (as the case requires)
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in the presence of that person and each
other; and".
(2) After section 35A(2) of the Principal Act insert--
"(2A) For the avoidance of doubt, it is not
necessary--
5
(a) for the same persons to witness the
execution of the instrument by the
appointor, the proposed enduring
guardian and the proposed alternative
enduring guardian (if any); or
10
(b) for the appointor, the proposed
enduring guardian and the proposed
alternative enduring guardian to
execute the instrument at the same time
or in the presence of each other.".
15
17. Appointment of administrator--wishes of proposed
represented person
(1) For section 46(2) of the Principal Act
substitute--
"(2) In determining whether or not a person is in
20
need of an administrator of her or his estate,
the Tribunal must consider--
(a) whether the needs of the person in
respect of whom the application is
made could be met by other means less
25
restrictive of the person's freedom of
decision and action; and
(b) the wishes of the person in respect of
whom the application is made, so far as
they can be ascertained.".
30
(2) In section 47(2)(a) of the Principal Act, after
"person" insert ", so far as they can be
ascertained".
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18. New section 47B inserted
After section 47A of the Principal Act insert--
"47B. Payment of costs and expenses to
administrator or former administrator
from estate
5
(1) If, in any proceeding, a court or tribunal
orders that an administrator pay any costs of
the proceeding, the court or tribunal may
order that the administrator pay, or be
reimbursed for, all or part of those costs from
10
the estate administered by the administrator.
(2) In any proceeding, a court or tribunal may
order that an administrator be reimbursed for
all or part of the administrator's costs of the
proceeding from the estate administered by
15
the administrator.
(3) A court or tribunal may order that the costs
incurred in administering an estate by a
person appointed as an administrator
(including the costs of any proceeding) may
20
be paid out of, or reimbursed from, the
estate, whether or not the appointment has
been revoked or quashed.
(4) An order referred to in sub-section (3) may
be made on an application under section 55
25
or otherwise, and for that purpose, a
reference in section 55 to an administrator is
taken to include a reference to a person
whose appointment as an administrator has
been revoked or quashed.".
30
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19. Application for rehearing
After section 60A(3) of the Principal Act insert--
"(3A) If the Tribunal makes an order on a
reassessment under section 61 conducted on
the Tribunal's own initiative, a party or a
5
person entitled to notice of the reassessment
may apply to the Tribunal for a rehearing of
the reassessment, if the Tribunal gives
leave.".
20. New section 60B substituted
10
For section 60B of the Principal Act substitute--
"60B. Parties and notice
(1) In addition to any other parties, the following
are parties to a rehearing--
(a) in the case of the rehearing of an
15
application referred to in
section 60A(1)--a party to the
proceeding on that application;
(b) in the case of the rehearing of a
reassessment referred to in
20
section 60A(3A)--a party to the
reassessment.
(2) The following are entitled to notice of an
application for a rehearing--
(a) in the case of the rehearing of an
25
application referred to in
section 60A(1)--a person who was
entitled to notice of the making of the
that application;
(b) in the case of the rehearing of a
30
reassessment referred to in
section 60A(3A)--a person who was
entitled to notice of the reassessment.".
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21. New section 67 inserted
After section 66 of the Principal Act insert--
'67. Effect of setting aside administration
order on previous actions of administrator
(1) An order of a court or tribunal (the "setting
5
aside order") that sets aside, or has the
effect of setting aside, an administration
order does not affect the validity of anything
done in accordance with the administration
order before the setting aside order takes
10
effect.
(2) Sub-section (1) is subject to any order to the
contrary by the court or tribunal making the
setting aside order.'.
22. New section 86A inserted
15
After section 86 of the Principal Act insert--
"86A. Enduring guardians
An appointment of an enduring guardian
made under this Act that was in force
immediately before the commencement of
20
sections 16 and 24 of the Guardianship and
Administration (Further Amendment) Act
2005 is not invalid on or after that
commencement only because--
(a) it was not executed in accordance with
25
section 35A as amended by section 16
of the Guardianship and
Administration (Further
Amendment) Act 2005; or
(b) it is not in the form of Form 1 in
30
Schedule 4 as amended by section 24 of
the Guardianship and
Administration (Further
Amendment) Act 2005.".
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23. Acting Public Advocate
In Schedule 3 to the Principal Act, after
clause 2(1) insert--
"(1A) The Attorney-General may appoint a person who--
5 (a) has previously been appointed as Acting Public
Advocate under sub-clause (1); and
(b) has taken an oath or made an affirmation under
clause 3--
as Acting Public Advocate during the temporary
10 absence of the Public Advocate.
(1B) A person appointed under sub-clause (1A) is not
required to take another oath or make another
affirmation under clause 3.
(1C) The Attorney-General may at any time revoke an
15 appointment under sub-clause (1A).".
24. Form for appointment of enduring guardian
In Schedule 4 to the Principal Act, in Form 1--
(a) in clause 2, for "personal circumstances"
substitute "person or circumstances";
(b) after--
20
"This is an appointment of an enduring guardian made
under Division 5A of Part 4 of the Guardianship and
Administration Act 1986.
........................................ ...............
(Signature of appointor) (date)"
insert--
"CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at
least 2 witnesses) certify--
25 (a) that the appointor has signed this instrument
freely and voluntarily in our presence; and
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(b) that the appointor appeared to understand the
effect of this instrument.
........................................................ ...........
(Signature of witness authorised to (date)
witness the signing of statutory
declarations)
......................................................... ...........
(Signature of other witness) (date)";
(c) after--
"I, (insert name, address and occupation of proposed
5 guardian) accept appointment as a guardian under this
instrument and undertake to exercise the powers
conferred honestly and in accordance with the
provisions of the Guardianship and Administration
Act 1986.
.................................................. ...............
(Signature of proposed guardian) (date)"
insert--
10
"CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at
least 2 witnesses) certify--
(a) that the proposed guardian has signed this
15 instrument freely and voluntarily in our presence;
and
(b) that the proposed guardian appeared to
understand the effect of this instrument.
........................................................ ...........
(Signature of witness authorised to (date)
witness the signing of statutory
declarations)
......................................................... ...........
(Signature of other witness) (date)";
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(d) after--
"(If applicable:) I, (insert name, address and
occupation of proposed alternative guardian) accept
appointment as an alternative guardian under this
5 instrument and undertake to exercise the powers
conferred honestly and in accordance with the
provisions of the Guardianship and Administration
Act 1986.
...................................................... ...............
(Signature of proposed alternative (date)"
guardian)
insert--
10 "CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at
least 2 witnesses) certify--
(a) that the proposed alternative guardian has signed
this instrument freely and voluntarily in our
15 presence; and
(b) that the proposed alternative guardian appeared to
understand the effect of this instrument.
........................................................ ...........
(Signature of witness authorised to (date)
witness the signing of statutory
declarations)
......................................................... ...........
(Signature of other witness) (date)";
(e) omit--
"CERTIFICATE OF WITNESSES
20 We (insert names, addresses and occupations of at
least 2 witnesses) certify--
(a) that the appointor, the proposed guardian and the
proposed alternative guardian (if any) have
signed this instrument freely and voluntarily in
25 our presence; and
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(b) that the appointor, the proposed guardian and the
proposed alternative guardian (if any) appeared to
understand the effect of this instrument.
........................................................ ...........
(Signature of witness authorised to (date)
witness the signing of statutory
declarations)
......................................................... ...........
(Signature of other witness) (date)".
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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