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PARLIAMENT OF VICTORIA
Guardianship and Administration (Amendment)
Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENT OF THE GUARDIANSHIP AND
ADMINISTRATION ACT 1986 3
3. Definitions 3
4. Powers and duties of the Public Advocate 3
5. Power to enforce guardianship order 4
6. Appointment of alternative guardian 5
7. Appointment of enduring guardian 5
8. Authority of enduring guardian 6
9. Revocation of appointment by appointor 6
10. Revocation of appointment by Tribunal 7
11. Persons to whom Part applies 7
12. Person responsible 7
13. Best interests 8
14. Persons who may consent to medical or other treatment 8
15. Effect of consent 8
16. Refusal of medical treatment under the Medical Treatment
Act 1988 9
17. Substitution of section 42E 9
42E. Consent of Tribunal to special procedure 9
18. Consent of person responsible 9
19. New section 42HA inserted 10
42HA. Consent if patient is likely to recover within a
reasonable time 10
20. Persons eligible as administrators 12
21. New section 50A inserted 12
50A. Power to make gifts 12
22. Administrator may seek advice 13
23. Accounts 13
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Clause Page
24. New sections 58AA and 58AB inserted 13
58AA. Guardianship and Administration Fund 13
58AB. Notice of death of represented person 14
25. Ancillary powers of administrator 14
26. Who is entitled to notice of a reassessment? 15
27. Registration of interstate orders 16
28. Schedule 4 16
PART 3--AMENDMENT OF THE MENTAL HEALTH
ACT 1986 18
29. Definitions 18
3A. Meaning of consent of a person 18
30. Criteria for admission and detention as an involuntary patient 19
31. Admission and detention of involuntary patients 19
32. Community treatment orders 20
33. Transfer of mentally ill prisoners 20
34. Status of forensic patients 20
35. Requirements for obtaining informed consent 20
36. Consent required 20
37. Informed consent required 20
38. Definitions 21
39. Informed consent or consent of guardian or authorized
psychiatrist required 21
40. Consent to non-psychiatric treatment by guardian or
authorized psychiatrist 22
41. Repeal of section 86 24
42. New section 148 inserted 24
148. Transitional provision--Guardianship and
Administration (Amendment) Act 2002 24
PART 4--AMENDMENT OF THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 25
43. Schedule 1 25
ENDNOTES 26
ii
541263B.I1-18/4/2002 BILL LA CIRCULATION 25-10-2004
PARLIAMENT OF VICTORIA
Initiated in Assembly 17 April 2002
A BILL
to amend the Guardianship and Administration Act 1986, the
Mental Health Act 1986 and the Victorian Civil and
Administrative Tribunal Act 1998 and for other purposes.
Guardianship and Administration
(Amendment) Act 2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to make miscellaneous amendments to the
5 Guardianship and Administration Act
1986 concerning matters such as--
1
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Guardianship and Administration (Amendment) Act 2002
Act No.
PART 1--PRELIMINARY
s. 2
(i) consent to medical or dental treatment
on behalf of persons incapable of
giving consent; and
(ii) the appointment of alternative enduring
5 guardians; and
(iii) gifts by administrators; and
(iv) the powers and duties of the Public
Advocate; and
(v) the Guardianship and Administration
10 Fund; and
(b) to amend the Mental Health Act 1986
concerning consent to non-psychiatric and
psychiatric treatment; and
(c) to amend the Victorian Civil and
15 Administrative Tribunal Act 1998
concerning the constitution of the Tribunal
for certain proceedings.
2. Commencement
(1) This Act comes into operation on a day or days to
20 be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 January 2003, it comes into
operation on that day.
__________________
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Guardianship and Administration (Amendment) Act 2002
Act No.
PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 3
ADMINISTRATION ACT 1986
PART 2--AMENDMENT OF THE GUARDIANSHIP AND
ADMINISTRATION ACT 1986
3. Definitions
See:
(1) In section 3(1) of the Guardianship and Act No.
5 Administration Act 1986, in the definition of 58/1986.
Reprint No. 5
"registered practitioner", for "Dentists Act 1972" as at
substitute "Dental Practice Act 1999". 1 January
2000 and
amending Act
Nos 78/2000,
11/2001,
27/2001 and
51/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
(2) For section 3(2) of the Guardianship and
Administration Act 1986 substitute--
10 '(2) A reference in the definition of "nearest
relative" in sub-section (1) to a person's
brother or sister--
(a) is a reference to a brother or sister
whether of the full or half blood; and
15 (b) includes a reference to a person who
was adopted by one or both of the
first-mentioned person's parents.'.
4. Powers and duties of the Public Advocate
(1) For section 16(1)(ha) of the Guardianship and
20 Administration Act 1986 substitute--
"(ha) for the purposes of--
(i) an investigation under
paragraph (h); or
(ii) the provision of a report under
25 clause 35, 42 or 48 of Schedule 1
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PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 5
ADMINISTRATION ACT 1986
to the Victorian Civil and
Administrative Tribunal Act
1998--
require (subject to sub-section (1A)) a
5 person, government department, public
authority, service provider, institution
or welfare organisation to provide
information; and".
(2) After section 16(1) of the Guardianship and
10 Administration Act 1986 insert--
"(1A) It is a reasonable excuse for a person to
refuse or fail to provide information that the
person would otherwise be required under
sub-section (1)(ha) to provide if providing
15 the information would tend to incriminate
the person.".
5. Power to enforce guardianship order
(1) For section 26(1) of the Guardianship and
Administration Act 1986 substitute--
20 "(1) If, having regard to the circumstances of the
case, the Tribunal considers it appropriate to
do so the Tribunal may--
(a) when making a guardianship order
under Division 2 or 4, specify in the
25 order; or
(b) at any time while a guardianship order
under Division 2 or 4 is in force, make
an order specifying--
that the person named as plenary guardian or
30 limited guardian or another specified person
is empowered to take specified measures or
actions to ensure that the represented person
complies with the guardian's decisions in the
exercise of the powers and duties conferred
35 by the guardianship order.".
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ADMINISTRATION ACT 1986
(2) After section 26(2) of the Guardianship and
Administration Act 1986 insert--
"(3) Sub-section (1) does not limit section 24
or 25.".
5 6. Appointment of alternative guardian
In section 34(1) of the Guardianship and
Administration Act 1986, for "The Tribunal at
the time of making or reassessing a guardianship
order may by order appoint" substitute "When
10 making or reassessing a guardianship order, or at
any time when a guardianship order is in force,
the Tribunal may make an order appointing".
7. Appointment of enduring guardian
(1) After section 35A(1) of the Guardianship and
15 Administration Act 1986 insert--
"(1A) A person may, in the same instrument, also
appoint a person to be an alternative
enduring guardian.
(1B) An alternative enduring guardian takes the
20 place of, and has the same powers as, the
original enduring guardian if that person is
incapable of acting as the enduring guardian
or is absent for a period.".
(2) In section 35A(2) of the Guardianship and
25 Administration Act 1986--
(a) in paragraph (b), after "guardian" insert "and
the person appointed as the alternative
enduring guardian (if any)"; and
(b) in paragraph (c)(ii), after "guardian" insert
30 "or alternative enduring guardian (if any)".
(3) In section 35A(3) of the Guardianship and
Administration Act 1986, after "guardian" insert
"or alternative enduring guardian".
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ADMINISTRATION ACT 1986
(4) In section 35A(4) of the Guardianship and
Administration Act 1986, after "guardian" insert
"or alternative enduring guardian".
(5) For section 35A(5) of the Guardianship and
5 Administration Act 1986 substitute--
"(5) If a person who was validly appointed as an
enduring guardian or alternative enduring
guardian becomes ineligible to be appointed
because of sub-section (4), that person's
10 appointment lapses.".
8. Authority of enduring guardian
In section 35B of the Guardianship and
Administration Act 1986, in sub-sections (1) and
(2), for "personal" substitute "person or".
15 9. Revocation of appointment by appointor
(1) For section 35C(1) of the Guardianship and
Administration Act 1986 substitute--
"(1) If a person appoints an enduring guardian or
alternative enduring guardian, any earlier
20 appointment of an enduring guardian or
alternative enduring guardian (as the case
may be) is revoked.".
(2) In section 35C(2) of the Guardianship and
Administration Act 1986, after "enduring
25 guardian" insert "or alternative enduring
guardian".
(3) In section 35C(3) of the Guardianship and
Administration Act 1986--
(a) after "enduring guardian" (where first
30 occurring) insert "or alternative enduring
guardian"; and
(b) in paragraph (b)(ii), after "enduring
guardian" insert "or alternative enduring
guardian (as the case may be)".
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PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 10
ADMINISTRATION ACT 1986
10. Revocation of appointment by Tribunal
In section 35D of the Guardianship and
Administration Act 1986, after "enduring
guardian" (wherever occurring) insert "or
5 alternative enduring guardian".
11. Persons to whom Part applies
In section 36(1) of the Guardianship and
Administration Act 1986 omit "which is a
permanent or long term disability and".
10 12. Person responsible
(1) In section 37(2) of the Guardianship and
Administration Act 1986 for "otherwise than for
remuneration (whether from the patient or any
other source)" substitute "other than wholly or
15 substantially on a commercial basis".
(2) After section 37(5) of the Guardianship and
Administration Act 1986 insert--
'(6) For the purposes of sub-section (1)(h), if the
patient--
20 (a) is likely to be capable, within a
reasonable time, of giving consent to
the carrying out of a special procedure
or medical or dental treatment; and
(b) objects to a relative referred to in
25 paragraphs (a) to (g) of the definition of
"nearest relative" in section 3(1) being
involved in decisions concerning a
special procedure to be carried out on
the patient or the patient's medical or
30 dental treatment--
that relative is taken not to be the nearest
relative of the patient.'.
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Act No.
PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 13
ADMINISTRATION ACT 1986
13. Best interests
At the end of section 38 of the Guardianship and
Administration Act 1986 insert--
'(2) For the purposes of sub-section (1)(b), if the
5 patient--
(a) is likely to be capable, within a
reasonable time, of giving consent to
the carrying out of a special procedure
or medical or dental treatment; and
10 (b) objects to--
(i) a relative referred to in paragraphs
(a) to (g) of the definition of
"nearest relative" in section 3(1);
or
15 (ii) another family member (other
than the patient's spouse or
domestic partner)--
being involved in decisions concerning
a special procedure to be carried out on
20 the patient or the patient's medical or
dental treatment--
that relative or family member is taken not to
be the nearest relative or a family member of
the patient.'.
25 14. Persons who may consent to medical or other
treatment
In section 39 of the Guardianship and
Administration Act 1986, for "Consent"
substitute "Subject to Divisions 4 and 5,
30 consent".
15. Effect of consent
In section 40 of the Guardianship and
Administration Act 1986, for "under this Part"
substitute "in accordance with this Part".
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PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 16
ADMINISTRATION ACT 1986
16. Refusal of medical treatment under the Medical
Treatment Act 1988
In section 41 of the Guardianship and
Administration Act 1986, after "dental
5 treatment" insert ", or special procedure,".
17. Substitution of section 42E
For section 42E of the Guardianship and
Administration Act 1986 substitute--
"42E. Consent of Tribunal to special procedure
10 On hearing an application under this
Division, the Tribunal may only consent to
the carrying out of a special procedure if it is
satisfied that the patient is incapable of
giving consent and--
15 (a) if the patient is likely to be capable,
within a reasonable time, of giving
consent, the special procedure--
(i) is a procedure to be carried out for
the purposes of medical research;
20 and
(ii) would be in the patient's best
interests; or
(b) if the patient is not likely to be capable,
within a reasonable time, of giving
25 consent, the special procedure would be
in the patient's best interests.".
18. Consent of person responsible
At the foot of section 42H(1) of the
Guardianship and Administration Act 1986
30 insert--
"Note: However, section 42HA affects whether the person
responsible may consent to the carrying out of
medical or dental treatment in certain circumstances.".
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Guardianship and Administration (Amendment) Act 2002
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PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 19
ADMINISTRATION ACT 1986
19. New section 42HA inserted
After section 42H of the Guardianship and
Administration Act 1986 insert--
"42HA. Consent if patient is likely to recover within
5 a reasonable time
(1) This section applies despite anything else in
this Part but does not apply to emergency
treatment under section 42A.
(2) If a patient is likely to be capable, within a
10 reasonable time, of giving consent to the
carrying out of medical or dental treatment,
the person responsible for the patient can
only consent to the carrying out of the
treatment, and a registered practitioner can
15 only carry out that treatment, if--
(a) the registered practitioner reasonably
believes, and states in writing in the
patient's clinical records, that a further
delay in carrying out the treatment
20 would result in a significant
deterioration of the patient's condition;
and
(b) neither the registered practitioner nor
the person responsible has any reason
25 to believe that the carrying out of the
treatment would be against the patient's
wishes.
(3) If the registered practitioner or person
responsible has reason to believe that the
30 carrying out of the treatment would be
against the patient's wishes, the practitioner
or person responsible may apply to the
Tribunal for its consent to the carrying out of
the treatment.
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PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 19
ADMINISTRATION ACT 1986
(4) The Tribunal must--
(a) give notice of the application and of
any order, directions or advisory
opinion made or given concerning the
5 application to--
(i) the Public Advocate; and
(ii) any other person whom the
Tribunal considers has a special
interest in the patient's affairs,
10 including the registered
practitioner and person
responsible for the patient; and
(b) start hearing the application within
14 days after the day on which the
15 Tribunal received it.
(5) The patient is a party to the proceeding on
the application.
(6) On hearing the application, the Tribunal may
consent to the carrying out of the medical or
20 dental treatment, and a registered practitioner
may carry out that treatment, if the Tribunal
is satisfied that--
(a) the patient is incapable of giving
consent; and
25 (b) a further delay in carrying out the
treatment would result in a significant
deterioration of the patient's condition;
and
(c) the treatment would be in the patient's
30 best interests, having regard to the
evidence (if any) of the patient's views
about such treatment.".
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Guardianship and Administration (Amendment) Act 2002
Act No.
PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 20
ADMINISTRATION ACT 1986
20. Persons eligible as administrators
For section 47(4) of the Guardianship and
Administration Act 1986 substitute--
"(4) If the Tribunal makes an order--
5 (a) appointing State Trustees as
administrator of the estate of a
proposed represented person; and
(b) specifying that the administrator is to
have powers and duties which are more
10 limited than those referred to in
Division 3A--
the Tribunal must give State Trustees a copy
of the order as soon as practicable after it is
made.".
15 21. New section 50A inserted
After section 50 of the Guardianship and
Administration Act 1986 insert--
"50A. Power to make gifts
(1) An administrator may make a gift of the
20 represented person's property only if--
(a) the gift's value is not more than what is
reasonable in all the circumstances and,
in particular, the represented person's
financial circumstances; and
25 (b) the gift is--
(i) to a relative or close friend of the
represented person and is of a
seasonal nature or for a special
event (including, for example, a
30 birth or marriage); or
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Guardianship and Administration (Amendment) Act 2002
Act No.
PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 22
ADMINISTRATION ACT 1986
(ii) a type of donation that the
represented person made when he
or she had the capacity to do so or
might reasonably be expected to
5 make.
(2) The administrator or a charity with which the
administrator has a connection is not
precluded from receiving such a gift.".
22. Administrator may seek advice
10 After section 55(4) of the Guardianship and
Administration Act 1986 insert--
"(4A) The Tribunal may on its own initiative
direct, or give an advisory opinion to, an
administrator concerning any matter.".
15 23. Accounts
In section 58 of the Guardianship and
Administration Act 1986, sub-sections (7) and
(9A) are repealed.
24. New sections 58AA and 58AB inserted
20 After section 58 of the Guardianship and
Administration Act 1986 insert--
'58AA. Guardianship and Administration Fund
(1) There is to be established in the Public
Account as part of the Trust Fund an account
25 to be known as "The Guardianship and
Administration Fund".
(2) There is to be paid into the Fund--
(a) all fees prescribed under section 58A
that are paid in respect of estates which
30 are the subject of an administration
order; and
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Guardianship and Administration (Amendment) Act 2002
Act No.
PART 2--AMENDMENT OF THE GUARDIANSHIP AND
s. 25
ADMINISTRATION ACT 1986
(b) interest received from the investment of
money in the Fund.
(3) There is also to be paid into the Fund all
money standing to the credit of the
5 Guardianship and Administration Fund
established by section 58(7) immediately
before that provision was repealed.
(4) Money standing to the credit of the
Guardianship and Administration Fund may
10 be invested in any manner in which trust
funds may be invested under the Trustee
Act 1958.
(5) The Guardianship and Administration Fund
is to be used to meet the costs and expenses
15 of the Tribunal in respect of proceedings
under this Act.
(6) After this section commences, a reference in
another Act or a statutory rule (within the
meaning of the Subordinate Legislation
20 Act 1994) to the Guardianship and
Administration Fund established by section
58(7) of this Act is taken to be a reference to
the Fund established by this section.
58AB. Notice of death of represented person
25 An administrator must notify the Tribunal in
writing without delay if the represented
person dies.'.
25. Ancillary powers of administrator
(1) In section 61(1) of the Guardianship and
30 Administration Act 1986, for paragraph (b)
substitute--
"(b) in any case, at least once within each 3 year
period after making the order unless the
Tribunal orders otherwise.".
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Guardianship and Administration (Amendment) Act 2002
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s. 26
ADMINISTRATION ACT 1986
(2) After section 61(4) of the Guardianship and
Administration Act 1986 insert--
"(5) The amendment to sub-section (1)(b) made
by section 25 of the Guardianship and
5 Administration (Amendment) Act 2002
applies to orders made before or after that
amendment commences.".
26. Who is entitled to notice of a reassessment?
(1) After section 62(2) of the Guardianship and
10 Administration Act 1986 insert--
"(2A) However, if the Tribunal conducts a
reassessment on its own initiative and does
not propose to amend, vary or replace the
order--
15 (a) instead of giving notice under
sub-section (2), the Tribunal may give
notice to the parties and the persons
specified in sub-section (1) that the
party or person has 14 days from the
20 date of the notice to request, in writing,
a hearing of the reassessment; and
(b) if--
(i) any of the parties or persons
request a hearing within that time,
25 the Tribunal must give at least
7 days' notice of the hearing to
each of the parties and persons; or
(ii) none of the parties or persons
request a hearing within that time,
30 the Tribunal is not required to
hold a hearing of the
reassessment.".
15
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s. 27
ADMINISTRATION ACT 1986
(2) In section 62(3) of the Guardianship and
Administration Act 1986, after "sub-section (2)"
insert "or (2A)(b)(i)".
(3) After section 62(3) of the Guardianship and
5 Administration Act 1986 insert--
"(4) The amendments to this section made by
section 26 of the Guardianship and
Administration (Amendment) Act 2002
only apply to applications for a reassessment
10 made after the amendments commence.".
27. Registration of interstate orders
For section 63E(1) of the Guardianship and
Administration Act 1986 substitute--
"(1) The Tribunal may register an interstate order
15 on the application of--
(a) a guardian or administrator of a
represented person in a participating
State; or
(b) the Public Advocate.".
20 28. Schedule 4
(1) In Schedule 4 to the Guardianship and
Administration Act 1986, in Form 1--
(a) after "(State wishes to be taken into
account)" insert--
25 "4. (If applicable:) I appoint (insert name, address
and occupation of proposed alternative
guardian) to be my alternative guardian in place
of, and with the same powers as, my guardian
appointed under paragraph 1 if that person is
30 incapable of acting as my guardian or is absent
for a period."; and
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s. 28
ADMINISTRATION ACT 1986
(b) before "CERTIFICATE OF
WITNESSES" insert--
"(If applicable:) I, (insert name, address and
occupation of proposed alternative guardian) accept
5 appointment as an alternative 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 (date)"; and
alternative guardian)
10 (c) for paragraphs (a) and (b) under
"CERTIFICATE OF WITNESSES"
substitute--
"(a) that the appointor, the proposed guardian and
the proposed alternative guardian (if any) have
15 signed this instrument freely and voluntarily in
our presence; and
(b) that the appointor, the proposed guardian and
the proposed alternative guardian (if any)
appeared to understand the effect of this
20 instrument.".
(2) In Schedule 4 to the Guardianship and
Administration Act 1986, in Form 2, for
paragraphs 1 and 2 substitute--
"1. I (insert name, address and occupation of appointor),
25 revoke the appointment of (insert name, address and
occupation of proposed guardian or alternative
guardian) as my (insert guardian or alternative
guardian, as applicable).
2. This revocation of appointment as an (insert enduring
30 guardian or alternative enduring guardian, as
applicable) is made under Division 5A of Part 4 of the
Guardianship and Administration Act 1986.".
__________________
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Guardianship and Administration (Amendment) Act 2002
Act No.
Part 3--Amendment of the Mental Health Act 1986
s. 29
PART 3--AMENDMENT OF THE MENTAL HEALTH ACT
1986
29. Definitions
See: After section 3 of the Mental Health Act 1986
Act No.
5 insert--
59/1986.
Reprint No. 6
"3A. Meaning of consent of a person
as at
1 June 2000
(1) In considering, for the purposes of a
and
amending Act
provision listed in sub-section (2), whether a
Nos 67/1998,
person in respect of whom--
39/2000,
2/2001,
10 11/2001, (a) a guardian within the meaning of the
27/2001,
Guardianship and Administration
44/2001,
45/2001, Act 1986; or
51/2001 and
7/2002.
(b) a person responsible within the
LawToday:
meaning given by section 37 of that Act
www.dms.
dpc.vic.
15 may make decisions relating to
gov.au
treatment; or
(c) an agent has been appointed under the
Medical Treatment Act 1988--
has refused or is unable to give consent
20 (including informed consent) to treatment, or
has given such consent, only that person's
personal refusal or consent is relevant and
not the refusal or consent of that person's
guardian, the person responsible, the agent or
25 the Tribunal.
(2) Sub-section (1) applies for the purposes of
each of these provisions--
(a) section 8 (criteria for admission and
detention as an involuntary patient);
30 (b) section 12 (admission and detention of
involuntary patients);
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Guardianship and Administration (Amendment) Act 2002
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Part 3--Amendment of the Mental Health Act 1986
s. 30
(c) section 14 (community treatment
orders);
(d) section 16 (transfer of mentally ill
prisoners);
5 (e) section 17A (status of forensic
patients);
(f) section 53B (requirements for obtaining
informed consent);
(g) section 57 (consent required);
10 (h) section 73 (informed consent required);
(i) section 83 (definitions concerning
non-psychiatric treatment).
(3) This section has effect despite anything in
the Guardianship and Administration Act
15 1986, the Medical Treatment Act 1988 or
any other law.".
30. Criteria for admission and detention as an
involuntary patient
In section 8 of the Mental Health Act 1986--
20 (a) at the foot of sub-section (1) insert--
"Note: In considering whether a person has refused or
is unable to consent to treatment, see
section 3A."; and
(b) sub-section (4) is repealed.
25 31. Admission and detention of involuntary patients
In section 12 of the Mental Health Act 1986, at
the foot of sub-section (6) insert--
"Note: In considering whether a person has refused or is
unable to consent to treatment, see section 3A.".
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s. 32
32. Community treatment orders
In section 14 of the Mental Health Act 1986--
(a) at the foot of sub-section (1A) insert--
"Note: In considering whether a person has refused or
5 is unable to consent to treatment, see
section 3A."; and
(b) sub-section (1B) is repealed.
33. Transfer of mentally ill prisoners
In section 16 of the Mental Health Act 1986, at
10 the foot of sub-section (6) insert--
"Note: In considering whether a person has refused or is
unable to consent to treatment, see section 3A.".
34. Status of forensic patients
In section 17A of the Mental Health Act 1986, at
15 the foot of sub-section (2) insert--
"Note: In considering whether a person has refused or is
unable to consent to treatment, see section 3A.".
35. Requirements for obtaining informed consent
In section 53B of the Mental Health Act 1986, at
20 the foot of sub-section (5) insert--
"Note: In considering whether a person has given informed
consent to treatment, see also section 3A.".
36. Consent required
In section 57 of the Mental Health Act 1986, at
25 the foot of sub-section (3) insert--
"Note: In considering whether a person has given informed
consent to treatment, see also section 3A.".
37. Informed consent required
In section 73 of the Mental Health Act 1986, at
30 the foot of sub-section (4) insert--
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s. 38
"Note: In considering whether a person has given informed
consent to treatment, see also section 3A.".
38. Definitions
(1) In section 83(1) of the Mental Health Act 1986,
5 after "effects of mental disorder" insert "but does
not include a special procedure within the
meaning of the Guardianship and
Administration Act 1986".
(2) In section 83 of the Mental Health Act 1986, at
10 the foot of sub-section (2) insert--
"Note: In considering whether a person has given informed
consent to treatment, see section 3A.".
39. Informed consent or consent of guardian or
authorized psychiatrist required
15 (1) In section 84(1) of the Mental Health Act 1986,
paragraph (e) is repealed.
(2) For section 84(3) of the Mental Health Act 1986
substitute--
"(3) This section does not apply to a person who
20 performed non-psychiatric treatment, or
caused or permitted such treatment to be
performed, on a patient if the person
believed on reasonable grounds when the
treatment was performed that it was
25 necessary, as a matter of urgency--
(a) to save the patient's life; or
(b) to prevent serious damage to the
patient's health; or
(c) to prevent the patient from suffering or
30 continuing to suffer significant pain or
distress.
(4) A person to whom this section does not
apply because of sub-section (3) is not--
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Part 3--Amendment of the Mental Health Act 1986
s. 40
(a) guilty of assault or battery; or
(b) liable in any civil proceedings for
assault or battery--
in respect of the treatment.
5 (5) Nothing in this section affects any duty of
care owed by a registered medical
practitioner to a patient.".
40. Consent to non-psychiatric treatment by guardian or
authorized psychiatrist
10 For section 85(1) of the Mental Health Act 1986
substitute--
"(1) If a patient is incapable of giving informed
consent as specified in section 84(1) to the
performance of non-psychiatric treatment,
15 the treatment may be performed with the
consent of--
(a) in the case of a patient who is 18 years
of age or over, the first person listed
below who, in the circumstances, is
20 reasonably available, willing and able
to make a decision concerning the
proposed treatment--
(i) a person appointed by the patient
under section 5A of the Medical
25 Treatment Act 1988;
(ii) a person appointed by the
Tribunal to make decisions
concerning the proposed
treatment;
30 (iii) a person appointed under a
guardianship order, within the
meaning of the Guardianship
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s. 40
and Administration Act 1986,
with power to make decisions
concerning the proposed
treatment;
5 (iv) a person appointed by the patient
(before the patient became
incapable of giving consent) as an
enduring guardian, within the
meaning of the Guardianship
10 and Administration Act 1986,
with power to make decisions
concerning the proposed
treatment;
(v) the authorized psychiatrist; or
15 (b) in the case of a patient who is under
18 years of age, any of the persons
listed below who, in the circumstances,
is reasonably available, willing and able
to make a decision concerning the
20 proposed treatment--
(i) a person with parental
responsibility (within the meaning
of the Family Law Act 1975 of the
Commonwealth) for the patient;
25 (ii) a guardian of the patient appointed
under a law of the Commonwealth
or of a State or Territory;
(iii) a person who, under section 271
of the Children and Young
30 Persons Act 1989, can consent to
the performance of the proposed
treatment on the patient;
(iv) the authorized psychiatrist if there
is no person with parental
35 responsibility, guardian or
custodian who is reasonably
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Guardianship and Administration (Amendment) Act 2002
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Part 3--Amendment of the Mental Health Act 1986
s. 41
available, willing and able to
make decisions concerning the
proposed treatment.".
41. Repeal of section 86
5 Section 86 of the Mental Health Act 1986 is
repealed.
42. New section 148 inserted
After section 147 of the Mental Health Act 1986
insert--
10 "148. Transitional provision--Guardianship and
Administration (Amendment) Act 2002
Despite the repeal of section 84(1)(e) by
section 39(1) of the Guardianship and
Administration (Amendment) Act 2002, a
15 person is taken not to perform, or cause or
permit the performance of, non-psychiatric
treatment on a patient contrary to section 84
of this Act if--
(a) before that repeal, the person obtained
20 the registered medical practitioner's
consent under section 12(1) of this Act
to the performance of the treatment on
the patient; and
(b) after that repeal, the person performs
25 the treatment, or causes or permits the
treatment to be performed, on the
patient in accordance with that
consent.".
__________________
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Guardianship and Administration (Amendment) Act 2002
Act No.
Part 4--Amendment of the Victorian Civil and Administrative Tribunal Act
s. 43
1998
PART 4--AMENDMENT OF THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
43. Schedule 1
See:
In Schedule 1 to the Victorian Civil and Act No.
5 Administrative Tribunal Act 1998, in clause 53/1998.
Reprint No. 2
31(3)(a), after "senior member" insert "or as at
presidential member". 15 July 2001
and
amending Act
Nos 98/2000,
2/2001,
68/2001 and
96/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
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Guardianship and Administration (Amendment) Act 2002
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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