Victorian Consolidated Legislation

Guardianship and Administration Act 1986 - SECT 37

Person responsible

37. Person responsible







(1) In this Part, person responsible, in relation to a patient and in relation
to a proposed medical research procedure or proposed medical or dental
treatment, means the first person listed below who is responsible for the
patient and who, in the circumstances, is reasonably available and willing and
able to make a decision under this Part-

   (a)  a person appointed by the patient under section 5A of the
        Medical Treatment Act 1988;

   (b)  a person appointed by the Tribunal to make decisions in relation to
        the proposed procedure or treatment;

   (c)  a person appointed under a guardianship order with power to make
        decisions in relation to the proposed procedure or treatment;

   (d)  a person appointed by the patient (before the patient became incapable
        of giving consent) as an enduring guardian with power to make
        decisions in relation to the proposed procedure or treatment;

   (e)  a person appointed in writing by the patient (being the person
        appointed last in time before the patient became incapable of giving
        consent) to make decisions in relation to medical research procedures
        that include the proposed procedure or medical or dental treatment
        which includes the proposed treatment;

   (f)  the patient's spouse or domestic partner;





   (g)  the patient's primary carer;

   (h)  the patient's nearest relative within the meaning of paragraphs (a) to
        (g) of the definition of nearest relative in section 3.

(2) The circumstances in which a person is to be regarded as having the care
of a patient include, but are not limited to, the case where the person, other
than wholly or substantially on a commercial basis, regularly-

   (a)  provides domestic services and support to the patient; or

   (b)  arranges for the patient to be provided with domestic services and
        support.

(3) A patient who is cared for in an institution (such as a hospital,
community residential unit, residential care service, supported residential
service or State funded residential care service within the meaning of the
Health Services Act 1988) at which he or she is cared for by some other person
is not, by reason only of that fact, to be regarded as being in the care of
that other person and remains in the care of the person in whose care he or
she was immediately before being cared for in that institution.

(4) For the purposes of this section, a reference to the spouse or domestic
partner of a patient-



   (a)  is a reference to a spouse or domestic partner who is not under
        guardianship and with whom the patient has a close and continuing
        relationship; and



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(5) If the person responsible for a patient is an agent appointed under
section 5A of the Medical Treatment Act 1988, the powers the person may
exercise as an agent under that Act are in addition to the powers the person
may exercise under this Act.

(6) For the purposes of subsection (1)(h), if the 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

   (b)  objects to a relative referred to in 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 dental treatment-

that relative is taken not to be the nearest relative of the patient.

(7) For the purposes of subsection (1)(h), if the patient-

   (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

(b) objects to a relative referred to in paragraphs (a) to (g) of the
definition of "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-

that relative is taken not to be the nearest relative of the patient.