Victorian Consolidated Legislation

Guardianship and Administration Act 1986 - SECT 42HA

Consent if patient is likely to recover within a reasonable time

42HA. Consent if patient is likely to recover within 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 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 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 would result in a significant deterioration of the
        patient's condition; and

   (b)  neither the registered practitioner nor the person responsible has any
        reason 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 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.

(4) The Tribunal must-

   (a)  give notice of the application and of any order, directions or
        advisory opinion made or given concerning the application to-

   (i)  the Public Advocate; and

   (ii) any other person whom the Tribunal considers has a special interest in
        the patient's affairs, 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 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 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

   (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 best interests, having regard
        to the evidence (if any) of the patient's views about such treatment.