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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Acts Amendment (Consent to Medical
Treatment) Bill 2006
CONTENTS
Part 1 -- Preliminary matters
1. Short title 2
2. Commencement 2
Part 2 -- Guardianship and
Administration
Act 1990 amended
3. The Act amended 3
4. Long title amended 3
5. Section 3 amended 3
6. Section 45 amended 5
7. Section 50 amended 6
8. Section 55A inserted 6
55A. Priority of guardianship order 6
9. Section 104 amended 7
10. Section 104C inserted 8
104C. Eligibility for appointment as donee or
substitute donee 8
11. Parts 9A to 9D inserted 8
Part 9A -- Enduring powers of guardianship
Division 1 -- Preliminary matters
110A. Meaning of "appointor" 8
Division 2 -- Making of enduring power
of guardianship
110B. Appointing enduring guardian 8
110C. Substitute enduring guardians 9
110D. Who is eligible to be appointed 9
110E. Formal requirements 9
149--2 page i
Acts Amendment (Consent to Medical Treatment) Bill 2006
Contents
Division 3 -- Operation of enduring power of
guardianship
110F. When enduring guardian may act 11
110G. Functions generally 11
110H. Certain provisions apply in relation to
enduring guardian and appointor 12
110I. Priority of enduring power of guardianship 12
Division 4 -- Jurisdiction of State Administrative
Tribunal
110J. Who may apply 12
110K. Declaration about validity of enduring
power of guardianship 13
110L. Declaration of incapacity of appointor 13
110M. Directions as to construction of terms etc. 13
110N. Revocation or variation of enduring power
of guardianship 13
110O. Recognition of instrument created in
another jurisdiction 14
Part 9B -- Advance health directives
Division 1 -- Making of advance health directive
110P. Making advance health directive 15
110Q. Formal requirements 15
110R. Requirements in relation to treatment
decision in advance health directive 16
110RA. Register for advance health directives 16
Division 2 -- Operation of advance health directive
110S. Operation generally 17
110T. Effect of subsequent enduring power of
guardianship 18
110U. Priority of treatment decision in advance
health directive 19
Division 3 -- Jurisdiction of State Administrative
Tribunal
110V. Who may apply 19
110W. Declaration about validity of directive or
treatment decision 19
110X. Declaration of incapacity of maker 19
110Y. Directions as to construction of terms etc. 20
110Z. Declaration that treatment decision has
been revoked 20
110ZA. Recognition of instrument created in
another jurisdiction 20
Division 4 -- Treatment decisions under common
law
110ZB. Common law preserved 21
page ii
Acts Amendment (Consent to Medical Treatment) Bill 2006
Contents
Part 9C -- Persons responsible for patients
Division 1 -- Preliminary matters
110ZC. Terms used in this Part 21
Division 2 -- Treatment decisions by persons
responsible for patients
110ZD. Circumstances in which person
responsible may make treatment decision 21
110ZE. Priority of treatment decision of person
responsible 23
Division 3 -- Jurisdiction of State Administrative
Tribunal
110ZF. Who may apply 23
110ZG. Declaration that person responsible may
make treatment decision 23
Part 9D -- Treatment decisions in relation to patients
under legal incapacity
110ZH. Terms used in this Part 24
110ZI. Urgent treatment generally 25
110ZIA. Urgent treatment after attempted suicide 25
110ZJ. Order of priority of persons who may
make treatment decision in relation to
patient 26
110ZK. Reliance by health professional on
treatment decision 27
110ZL. Validity of certain treatment decisions 29
12. Section 119 replaced 30
119. Order of priority of enduring guardian and
guardian for matters other than treatment
decisions 30
13. Review of the Guardianship and Administration
Act 1990 31
Part 3 -- Civil Liability Act 2002
amended
14. The Act amended 32
15. Section 5PA amended 32
Part 4 -- The Criminal Code
amended
16. The Act amended 33
17. Section 259 amended 33
18. Section 265 amended 33
19. Section 275 amended 34
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Acts Amendment (Consent to Medical
Treatment) Bill 2006
A Bill for
An Act to amend the following --
· the Guardianship and Administration Act 1990;
· the Civil Liability Act 2002;
· The Criminal Code.
The Parliament of Western Australia enacts as follows:
page 1
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 1 Preliminary matters
s. 1
Part 1 -- Preliminary matters
1. Short title
This is the Acts Amendment (Consent to Medical Treatment) Act
2006.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
page 2
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 3
Part 2 -- Guardianship and Administration
Act 1990 amended
3. The Act amended
The amendments in this Part are to the Guardianship and
5 Administration Act 1990*.
[* Reprint 3 as at 1 April 2005.
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1, p. 198 and
Act No. 34 of 2004.]
10 4. Long title amended
The long title is amended by deleting "to make provision for a
power of attorney to operate after the donor has ceased to have
legal capacity," and inserting instead --
"
15 to provide for enduring powers of attorney, enduring powers
of guardianship and advance health directives,
".
5. Section 3 amended
(1) Section 3(1) is amended by deleting the definition of
20 "treatment".
(2) Section 3(1) is amended by inserting in the appropriate
alphabetical positions --
"
"advance health directive" means --
25 (a) an advance health directive made under
Part 9B; or
(b) an instrument recognised as such under
section 110ZA;
page 3
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 5
"enduring guardian" means --
(a) the person who is the enduring guardian
under an enduring power of guardianship; or
(b) the persons who are the joint enduring
5 guardians under an enduring power of
guardianship,
and includes a substitute enduring guardian while
he or she is the enduring guardian or a joint
enduring guardian under an enduring power of
10 guardianship;
"enduring power of guardianship" means --
(a) an enduring power of guardianship made
under Part 9A; or
(b) an instrument recognised as such under
15 section 110O;
"life sustaining measure" means a medical, surgical
or nursing procedure directed at supplanting or
maintaining a vital bodily function that is
temporarily or permanently incapable of
20 independent operation, and includes assisted
ventilation and cardiopulmonary resuscitation;
"palliative care" means a medical, surgical or nursing
procedure directed at relieving a person's pain,
discomfort or distress, but does not include a life
25 sustaining measure;
"substitute enduring guardian" means a person
appointed as a substitute enduring guardian under
section 110C(1);
"treatment" means --
30 (a) medical or surgical treatment, including --
(i) a life sustaining measure; and
(ii) palliative care;
or
page 4
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 6
(b) dental treatment; or
(c) other health care;
"treatment decision", in relation to a person, means a
decision to consent or refuse consent to the
5 commencement or continuation of any treatment
of the person.
".
6. Section 45 amended
(1) Section 45(2) is amended as follows:
10 (a) by deleting "may --" and inserting instead --
" may do any of the following -- ";
(b) by deleting paragraph (d) and inserting instead --
"
(d) subject to subsection (4), make treatment
15 decisions for the represented person;
";
(c) after paragraph (g) by deleting "and".
(2) Section 45(3) is amended as follows:
(a) by deleting "may not --" and inserting instead --
20 "
cannot do any of the following on behalf of the
represented person --
";
(b) after paragraph (c) by deleting "or";
25 (c) after paragraph (d) by deleting the comma and inserting
a full stop instead;
(d) by deleting "on behalf of a represented person; or";
(e) by deleting paragraph (e).
page 5
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 7
(3) After section 45(3) the following subsection is inserted --
"
(4) A plenary guardian cannot consent to the sterilisation
of the represented person, except in accordance with
5 Division 3.
".
7. Section 50 amended
Section 50 is amended as follows:
(a) by deleting "consent given," and inserting instead --
10 " consent given or refused, ";
(b) by inserting after "given," in the second place where it
occurs --
" refused, ".
8. Section 55A inserted
15 After section 55 the following section is inserted in Part 5
Division 2 --
"
55A. Priority of guardianship order
(1) To the extent a guardianship order relates to the
20 making of a treatment decision for the represented
person, the priority to be given to the order is
determined in accordance with section 110ZJ.
(2) To the extent a guardianship order relates to the
performance of any other function in relation to the
25 represented person, the priority to be given to the order
is determined in accordance with section 119.
".
page 6
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 9
9. Section 104 amended
(1) At the beginning of section 104 the following subsection is
inserted --
"
5 (1a) A person who has reached 18 years of age and has full
legal capacity may create an enduring power of
attorney.
".
(2) Section 104(2) is amended by deleting paragraph (a) and "and"
10 after it and inserting instead --
"
(a) there are 2 attesting witnesses to the
instrument --
(i) both of whom are authorised by law to
15 take declarations; or
(ii) of whom --
(I) one is authorised by law to take
declarations; and
(II) the other has the qualifications
20 specified in subsection (3);
and
".
(3) After section 104(2) the following subsection is inserted --
"
25 (3) A witness referred to in subsection (2)(a)(ii)(II) must
be a person --
(a) who has reached 18 years of age; and
(b) who is not a person appointed to be a donee or
substitute donee of the power.
30 ".
page 7
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 10
10. Section 104C inserted
After section 104B the following section is inserted --
"
104C. Eligibility for appointment as donee or substitute
5 donee
A person is eligible to be appointed as a donee or
substitute donee of an enduring power of attorney if the
person has reached 18 years of age and has full legal
capacity.
10 ".
11. Parts 9A to 9D inserted
After section 110 the following Parts are inserted --
"
Part 9A -- Enduring powers of guardianship
15 Division 1 -- Preliminary matters
110A. Meaning of "appointor"
In this Part --
"appointor", in relation to an enduring power of
guardianship, means the maker of the power.
20 Division 2 -- Making of enduring power
of guardianship
110B. Appointing enduring guardian
A person who has reached 18 years of age and has full
legal capacity may make an enduring power of
25 guardianship appointing --
(a) a person as the enduring guardian of the person;
or
page 8
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
(b) 2 or more persons as the joint enduring
guardians of the person.
110C. Substitute enduring guardians
(1) An appointor may, in the enduring power of
5 guardianship, appoint one or more persons to be
substitute enduring guardians.
(2) A substitute enduring guardian becomes the enduring
guardian or a joint enduring guardian (as the case may
be) in the circumstances specified in the enduring
10 power of guardianship.
110D. Who is eligible to be appointed
A person is eligible to be appointed under section 110B
or 110C(1) if the person has reached 18 years of age
and has full legal capacity.
15 110E. Formal requirements
(1) An enduring power of guardianship is not valid
unless --
(a) it is in the form or substantially in the form
prescribed by the regulations; and
20 (b) it is signed by the appointor or by another
person in the presence of, and at the direction
of, the appointor; and
(c) the signature referred to in paragraph (b) is
witnessed by 2 persons --
25 (i) both of whom are authorised by law to
take declarations; or
(ii) of whom --
(I) one is authorised by law to take
declarations; and
page 9
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(II) the other has the qualifications
specified in subsection (2);
and
(d) it is signed by the witnesses referred to in
5 paragraph (c) in the presence of --
(i) the appointor; and
(ii) the person who signed it at the
appointor's direction (if applicable); and
(iii) each other;
10 and
(e) it is signed by each person being appointed as
an enduring guardian or substitute enduring
guardian (an "appointee") to indicate the
appointee's acceptance of the appointment; and
15 (f) the signature of the appointee is witnessed by
2 persons --
(i) both of whom are authorised by law to
take declarations; or
(ii) of whom --
20 (I) one is authorised by law to take
declarations; and
(II) the other has the qualifications
specified in subsection (2);
and
25 (g) it is signed by the witnesses referred to in
paragraph (f) in the presence of the appointee
and each other.
(2) A witness referred to in subsection (1)(c)(ii)(II) or
(f)(ii)(II) must be a person --
30 (a) who has reached 18 years of age; and
(b) who is not --
(i) the appointor; or
page 10
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
(ii) the person who signed the enduring
power of guardianship at the appointor's
direction (if applicable); or
(iii) an appointee.
5 Division 3 -- Operation of enduring power of
guardianship
110F. When enduring guardian may act
An enduring power of guardianship has effect, subject
to its terms, at any time the appointor is unable to make
10 reasonable judgments in respect of matters relating to
his or her person.
110G. Functions generally
(1) Subject to this section, an enduring guardian has the
same functions under section 45(1) and (2), and is
15 subject to the same limitations under section 45(3) and
(4), in relation to the appointor as a plenary guardian
has and is subject to in relation to a represented person.
(2) An enduring power of guardianship may limit the
functions of the enduring guardian to the functions
20 specified in the power.
(3) An enduring power of guardianship may limit the
circumstances in which the enduring guardian may act
to the circumstances specified in the power.
(4) An enduring power of guardianship may include
25 directions about how the enduring guardian is to
perform any of his or her functions.
page 11
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
110H. Certain provisions apply in relation to enduring
guardian and appointor
The following provisions apply (with the necessary
changes) in relation to an enduring guardian and
5 appointor as if they were a guardian and represented
person respectively --
(a) sections 48 to 51;
(b) section 53(a);
(c) subject to the terms of the enduring power of
10 guardianship, section 54 as if it were not
subject to section 85;
(d) Part 5 Division 3 other than section 57(2).
110I. Priority of enduring power of guardianship
(1) To the extent an enduring power of guardianship
15 relates to the making of a treatment decision for the
appointor, the priority to be given to the power is
determined in accordance with section 110ZJ.
(2) To the extent an enduring power of guardianship
relates to the performance of any other function in
20 relation to the appointor, the priority to be given to the
power is determined in accordance with section 119.
Division 4 -- Jurisdiction of State Administrative
Tribunal
110J. Who may apply
25 A person who, in the opinion of the State
Administrative Tribunal, has a proper interest in the
matter may apply to the Tribunal for a decision under
this Division.
page 12
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
110K. Declaration about validity of enduring power of
guardianship
(1) The State Administrative Tribunal may declare that an
enduring power of guardianship is valid or invalid.
5 (2) A declaration made under subsection (1) has effect
according to its terms.
110L. Declaration of incapacity of appointor
(1) The State Administrative Tribunal may declare that the
appointor under an enduring power of guardianship is
10 unable to make reasonable judgments in respect of
matters relating to his or her person.
(2) A declaration made under subsection (1) has effect
according to its terms.
(3) The Tribunal may revoke a declaration made under
15 subsection (1).
110M. Directions as to construction of terms etc.
The State Administrative Tribunal may give directions
as to matters connected with --
(a) the exercise of an enduring power of
20 guardianship; or
(b) the construction of the terms of an enduring
power of guardianship.
110N. Revocation or variation of enduring power of
guardianship
25 (1) The State Administrative Tribunal may make an
order --
(a) revoking an enduring power of guardianship; or
(b) revoking the appointment of one or some of the
persons who are joint enduring guardians under
page 13
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
an enduring power of guardianship if the person
or each of the persons --
(i) wishes to be discharged; or
(ii) has been guilty of such neglect or
5 misconduct or of such default as, in the
opinion of the Tribunal, renders the
person unfit to continue as an enduring
guardian; or
(iii) appears to the Tribunal to be incapable
10 by reason of mental or physical
incapacity of carrying out the person's
duties;
or
(c) revoking or varying any of the terms of an
15 enduring power of guardianship.
(2) If the Tribunal makes an order under subsection (1)(b),
subject to the terms of the enduring power of
guardianship, the remaining enduring guardian or
guardians may act under the power.
20 (3) An order made under subsection (1) may be expressed
to come into effect at a time earlier than immediately
after it is made.
110O. Recognition of instrument created in another
jurisdiction
25 (1) The State Administrative Tribunal may make an order
recognising an instrument created under a law of
another jurisdiction as an enduring power of
guardianship under this Part if satisfied the instrument
corresponds sufficiently, in form and effect, to an
30 enduring power of guardianship made under this Part.
(2) The Tribunal may revoke an order made under
subsection (1).
page 14
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
Part 9B -- Advance health directives
Division 1 -- Making of advance health directive
110P. Making advance health directive
A person who has reached 18 years of age and has full
5 legal capacity may make an advance health directive
containing treatment decisions in respect of the
person's future treatment.
110Q. Formal requirements
(1) An advance health directive is not valid unless --
10 (a) it is in the form or substantially in the form
prescribed by the regulations; and
(b) it is signed by its maker or by another person in
the presence of, and at the direction of, its
maker; and
15 (c) the signature referred to in paragraph (b) is
witnessed by 2 persons --
(i) both of whom are authorised by law to
take declarations; or
(ii) of whom --
20 (I) one is authorised by law to take
declarations; and
(II) the other has the qualifications
specified in subsection (2);
and
25 (d) it is signed by the witnesses in the presence
of --
(i) its maker; and
(ii) the person who signed it at its maker's
direction (if applicable); and
30 (iii) each other.
page 15
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(2) A witness referred to in subsection (1)(c)(ii)(II) must
be a person --
(a) who has reached 18 years of age; and
(b) who is not --
5 (i) the maker of the advance health
directive; or
(ii) the person who signed the directive at
its maker's direction (if applicable).
110R. Requirements in relation to treatment decision in
10 advance health directive
(1) A treatment decision in an advance health directive is
invalid if the treatment decision --
(a) is not made voluntarily; or
(b) is made as a result of inducement or coercion.
15 (2) A treatment decision in an advance health directive is
invalid if, at the time the directive is made, its maker
does not understand --
(a) the nature of the treatment decision; or
(b) the consequences of making the treatment
20 decision.
110RA. Register for advance health directives
(1) A register for advance health directives will be
established.
(2) An advance health directive may be registered.
page 16
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
Division 2 -- Operation of advance health directive
110S. Operation generally
(1) A treatment decision in an advance health directive
operates in respect of the treatment to which it
5 applies --
(a) at any time the maker of the directive is unable
to make reasonable judgments in respect of that
treatment; and
(b) as if --
10 (i) the treatment decision had been made
by the maker at that time; and
(ii) the maker were of full legal capacity.
(2) Subject to subsection (3), a treatment decision in an
advance health directive operates only in the
15 circumstances specified in the directive.
(3) Subject to subsection (4), a treatment decision in an
advance health directive does not operate if
circumstances exist or have arisen that --
(a) the maker of the directive did not anticipate at
20 the time of making the directive; and
(b) would have caused the maker to change his or
her mind about the treatment decision.
(4) In determining whether or not subsection (3) applies in
relation to a treatment decision that is in an advance
25 health directive made more than 10 years before the
time at which the treatment decision would otherwise
operate, the matters that must be taken into account
include the following --
(a) the maker's age at the time of the directive was
30 made and at the time the treatment decision
would otherwise operate;
(b) the period that has elapsed between those times;
page 17
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(c) whether the maker reviewed the treatment
decision at any time during that period and, if
so, the period that has elapsed between the time
of the last such review and the time at which
5 the treatment decision would otherwise operate;
(d) the nature of the condition for which the maker
needs treatment, the nature of that treatment
and the consequences of providing and not
providing that treatment.
10 (5) Subsection (4) does not prevent a matter referred to
subsection (4)(a) to (d) being taken into account in
determining whether or not subsection (3) applies in
relation to any other treatment decision if it is relevant
to do so.
15 (6) Subject to section 110T, a treatment decision in an
advance health directive is taken to have been revoked
if the maker of the directive has changed his or her
mind about the treatment decision since making the
directive.
20 110T. Effect of subsequent enduring power of
guardianship
For the purposes of this Act --
(a) a treatment decision in an advance health
directive is not taken to have been revoked; and
25 (b) the maker of the directive is not taken to have
changed his or her mind about the treatment
decision since making the directive,
merely because the maker subsequently makes an
enduring power of guardianship (whether about the
30 same matter as the treatment decision or a different
matter).
page 18
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
110U. Priority of treatment decision in advance health
directive
The priority to be given to a treatment decision in an
advance health directive is determined in accordance
5 with section 110ZJ.
Division 3 -- Jurisdiction of State Administrative
Tribunal
110V. Who may apply
A person who, in the opinion of the State
10 Administrative Tribunal, has a proper interest in the
matter may apply to the Tribunal for a decision under
this Division.
110W. Declaration about validity of directive or treatment
decision
15 (1) The State Administrative Tribunal may declare that --
(a) an advance health directive; or
(b) a treatment decision in an advance health
directive,
is valid or invalid.
20 (2) A declaration made under subsection (1) has effect
according to its terms.
110X. Declaration of incapacity of maker
(1) The State Administrative Tribunal may declare that the
maker of an advance health directive is unable to make
25 reasonable judgments in respect of the treatment to
which a treatment decision in the directive applies.
(2) A declaration made under subsection (1) has effect
according to its terms.
page 19
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(3) The Tribunal may revoke a declaration made under
subsection (1).
110Y. Directions as to construction of terms etc.
The State Administrative Tribunal may give directions
5 as to matters connected with --
(a) the giving of effect to a treatment decision in an
advance health directive; or
(b) the construction of the terms of an advance
health directive.
10 110Z. Declaration that treatment decision has been
revoked
(1) The State Administrative Tribunal may declare that a
treatment decision in an advance health directive is
taken to have been revoked under section 110S(6).
15 (2) A declaration made under subsection (1) has effect
according to its terms.
(3) The Tribunal may revoke a declaration made under
subsection (1).
110ZA. Recognition of instrument created in another
20 jurisdiction
(1) The State Administrative Tribunal may make an order
recognising an instrument created under a law of
another jurisdiction as an advance health directive
made under this Part if satisfied the instrument
25 corresponds sufficiently, in form and effect, to an
advance health directive made under this Part.
(2) The Tribunal may revoke an order made under
subsection (1).
page 20
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
Division 4 -- Treatment decisions under common law
110ZB. Common law preserved
This Part does not affect the common law relating to a
person's entitlement to make treatment decisions in
5 respect of the person's future treatment.
Part 9C -- Persons responsible for patients
Division 1 -- Preliminary matters
110ZC. Terms used in this Part
In this Part --
10 "advance health directive" includes a directive given
by a person under the common law containing
treatment decisions in respect of the person's
future treatment;
"patient" means a person who needs treatment.
15 Division 2 -- Treatment decisions by persons
responsible for patients
110ZD. Circumstances in which person responsible may
make treatment decision
(1) If a patient is unable to make reasonable judgments in
20 respect of any treatment proposed to be provided to the
patient, the person responsible for the patient under
subsection (2) may make a treatment decision in
respect of the treatment.
(2) The person responsible for the patient is the first in
25 order of the persons listed in subsection (3) who --
(a) is of full legal capacity; and
(b) is reasonably available; and
(c) is willing to make a treatment decision in
respect of the treatment.
page 21
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(3) For subsection (2), the persons are the following --
(a) the patient's spouse or de facto partner if that
person --
(i) has reached 18 years of age; and
5 (ii) is living with the patient;
(b) the patient's nearest relative who maintains a
close personal relationship with the patient;
(c) the person who --
(i) has reached 18 years of age; and
10 (ii) is the primary provider of care and
support (including emotional support) to
the patient, but is not remunerated for
providing that care and support;
(d) any other person who --
15 (i) has reached 18 years of age; and
(ii) maintains a close personal relationship
with the patient.
(4) For subsection (3)(b), the patient's nearest relative is
the first in order of priority of the following relatives of
20 the patient who has reached 18 years of age --
(a) the spouse or de facto partner;
(b) a child;
(c) a parent;
(d) a sibling.
25 (5) For subsection (3)(b) and (d)(ii), a person maintains a
close personal relationship with the patient only if the
person --
(a) has frequent contact of a personal (as opposed
to a business or professional) nature with the
30 patient; and
(b) takes a genuine interest in the patient's welfare.
page 22
Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
(6) For subsection (3)(c)(ii), a person is not remunerated
for providing care and support to the patient although
the person receives a carer payment or other benefit
from the Commonwealth or a State or Territory for
5 providing home care for the patient.
(7) The person responsible for the patient cannot consent
to the sterilisation of the patient.
(8) A treatment decision made by the person responsible
for the patient has effect as if --
10 (a) the treatment decision had been made by the
patient; and
(b) the patient were of full legal capacity.
110ZE. Priority of treatment decision of person responsible
The priority to be given to a treatment decision of a
15 person responsible for a patient under section 110ZD is
determined in accordance with section 110ZJ.
Division 3 -- Jurisdiction of State Administrative
Tribunal
110ZF. Who may apply
20 A person who, in the opinion of the State
Administrative Tribunal, has a proper interest in the
matter may apply to the Tribunal for a decision under
this Division.
110ZG. Declaration that person responsible may make
25 treatment decision
(1) The State Administrative Tribunal may declare --
(a) that a patient is unable to make reasonable
judgments in respect of the treatment proposed
to be provided to the patient; and
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Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(b) that the person identified in the declaration is
the person responsible for the patient under
section 110ZD.
(2) A declaration made under subsection (1) has effect
5 according to its terms.
(3) The Tribunal may revoke a declaration made under
subsection (1).
Part 9D -- Treatment decisions in relation to
patients under legal incapacity
10 110ZH. Terms used in this Part
In this Part --
"advance health directive" includes a directive given
by a person under the common law containing
treatment decisions in respect of the person's
15 future treatment;
"health professional" has the meaning given to that
term in the Civil Liability Act 2002 section 5PA;
"patient" means a person who needs treatment;
"urgent treatment" means treatment urgently needed
20 by a patient --
(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
25 continuing to suffer significant pain or
distress,
but does not include the sterilisation of the patient.
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Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
110ZI. Urgent treatment generally
(1) Subsection (2) applies if --
(a) a patient needs urgent treatment; and
(b) the patient is unable to make reasonable
5 judgments in respect of the treatment; and
(c) it is not practicable for the health professional
who proposes to provide the treatment to
determine whether or not the patient has made
an advance health directive containing a
10 treatment decision that is inconsistent with
providing the treatment; and
(d) it is not practicable for the health professional
to obtain a treatment decision in respect of the
treatment from the patient's guardian or
15 enduring guardian or the person responsible for
the patient under section 110ZD.
(2) The health professional may provide the treatment to
the patient in the absence of a treatment decision in
relation to the patient.
20 110ZIA. Urgent treatment after attempted suicide
(1) Subsection (2) applies if --
(a) a patient needs urgent treatment; and
(b) the patient is unable to make reasonable
judgments in respect of the treatment; and
25 (c) the health professional who proposes to provide
the treatment reasonably suspects that the
patient has attempted to commit suicide and
needs the treatment as a consequence.
page 25
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(2) The health professional may provide the treatment to
the patient despite --
(a) that the patient has made an advance health
directive containing a treatment decision that is
5 inconsistent with providing the treatment; or
(b) that the patient's guardian or enduring guardian
or the person responsible for the patient under
section 110ZD has made such a treatment
decision in relation to the patient.
10 110ZJ. Order of priority of persons who may make
treatment decision in relation to patient
(1) Subject to section 110ZI, this section applies if a
patient is unable to make reasonable judgments in
respect of any treatment proposed to be provided to the
15 patient.
(2) If the patient has made an advance health directive
containing a treatment decision in respect of the
treatment, whether or not the treatment is provided to
the patient must be decided in accordance with the
20 treatment decision.
(3) If --
(a) subsection (2) does not apply; and
(b) the patient has an enduring guardian who --
(i) is authorised to make a treatment
25 decision in respect of the treatment; and
(ii) is reasonably available; and
(iii) is willing to make a treatment decision
in respect of the treatment,
whether or not the treatment is provided to the patient
30 must be decided by the enduring guardian.
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Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
(4) If --
(a) subsections (2) and (3) do not apply; and
(b) the patient has a guardian who --
(i) is authorised to make a treatment
5 decision in respect of the treatment; and
(ii) is reasonably available; and
(iii) is willing to make a treatment decision
in respect of the treatment,
whether or not the treatment is provided to the patient
10 must be decided by the guardian.
(5) If --
(a) subsections (2) to (4) do not apply; and
(b) there is a person responsible for the patient
under section 110ZD,
15 whether or not the treatment is provided to the patient
must be decided by the person responsible.
110ZK. Reliance by health professional on treatment
decision
(1) In this section --
20 "take treatment action" means --
(a) to commence or continue any treatment of a
patient; or
(b) to not commence or to discontinue any
treatment of a patient.
25 (2) If a health professional --
(a) takes treatment action --
(i) reasonably believing that the patient is
unable to make reasonable judgments in
respect of the treatment action; and
page 27
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 11
(ii) relying in good faith on what is
purportedly a treatment decision --
(I) in an advance health directive
made by the patient; or
5 (II) made by the patient's guardian
or enduring guardian or the
person responsible for the
patient under section 110ZD;
or
10 (b) takes treatment action --
(i) in circumstances where it is reasonable
for the health professional to rely on
some other health professional having
ascertained whether the treatment action
15 is in accordance with a treatment
decision; and
(ii) reasonably assuming that some other
health professional has ascertained that
the treatment action is in accordance
20 with a treatment decision,
the health professional is taken for all purposes to take
the treatment action in accordance with a treatment
decision that has effect as if --
(c) it had been made by the patient; and
25 (d) the patient were of full legal capacity.
(3) Subsection (2) applies in the circumstances described
in subsection (2)(a) even if --
(a) the patient is in fact able to make reasonable
judgments in respect of the treatment action; or
30 (b) what purports to be the advance health
directive, guardianship order or enduring power
of guardianship is invalid or has been revoked;
or
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Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 11
(c) what purports to be the treatment decision in
the advance health directive is invalid or has
been revoked; or
(d) the appointment of one or some of the persons
5 who made the treatment decision purportedly as
joint guardians or joint enduring guardians has
been revoked by the State Administrative
Tribunal under section 90(1)(c)(i) or
110N(1)(b); or
10 (e) the circumstances in which the treatment
decision in the advance health directive or the
guardianship order or enduring power of
guardianship may be acted on in fact do not
exist or have not arisen; or
15 (f) the advance health directive, guardianship order
or enduring power of guardianship in fact does
not authorise the making of the treatment
decision; or
(g) the person who made the treatment decision
20 purportedly as the person responsible for the
patient under section 110ZD was not the person
responsible for the patient under that section; or
(h) the person who made the treatment decision
purportedly as the person first in order of
25 priority under section 110ZJ was not the person
first in order of priority under that section.
110ZL. Validity of certain treatment decisions
If a health professional --
(a) commences or continues palliative care in
30 relation to a patient; or
(b) does not commence or discontinues any
treatment of a patient,
page 29
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 2 Guardianship and Administration Act 1990 amended
s. 12
in accordance with a treatment decision that is --
(c) in an advance health directive made by the
patient; or
(d) made by the patient's guardian or enduring
5 guardian or the person responsible for the
patient under section 110ZD,
the health professional is taken for all purposes to have
done so in accordance with a valid treatment decision,
even if an effect of doing so is to hasten the death of
10 the patient.
".
12. Section 119 replaced
Section 119 is repealed and the following section is inserted
instead --
15 "
119. Order of priority of enduring guardian and
guardian for matters other than treatment decisions
(1) This section applies if a person is unable to make
reasonable judgments in respect of a matter relating to
20 his or her person other than treatment proposed to be
provided to the person.
(2) If the person has an enduring guardian who --
(a) is authorised to make a decision in respect of
the matter; and
25 (b) is reasonably available; and
(c) is willing to make a decision in respect of the
matter,
a decision in respect of the matter must be made by the
enduring guardian.
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Acts Amendment (Consent to Medical Treatment) Bill 2006
Guardianship and Administration Act 1990 amended Part 2
s. 13
(3) If --
(a) subsection (2) does not apply; and
(b) the person has a guardian who --
(i) is authorised to make a decision in
5 respect of the matter; and
(ii) is reasonably available; and
(iii) is willing to make a decision in respect
of the matter,
a decision in respect of the matter must be made by the
10 guardian.
".
13. Review of the Guardianship and Administration Act 1990
(1) The Minister administering the Guardianship and
Administration Act 1990 is to carry out a review of the operation
15 and effectiveness of the provisions of the Guardianship and
Administration Act 1990 and the relevant sections of The
Criminal Code as soon as practicable after the expiration of
3 years from the commencement of this Act.
(2) The Minister is to prepare a report based on the review made
20 under subsection (1) and cause the report to be laid before each
House of Parliament within 4 years after the commencement of
this Act.
page 31
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 3 Civil Liability Act 2002 amended
s. 14
Part 3 -- Civil Liability Act 2002 amended
14. The Act amended
The amendments in this Part are to the Civil Liability Act 2002*.
[* Reprint 1 as at 10 February 2006.]
5 15. Section 5PA amended
Section 5PA is amended as follows:
(a) by deleting "includes" and inserting instead --
" means ";
(b) by deleting paragraph (m) and inserting instead --
10 "
(m) any other person who practises a discipline or
profession in the health area that involves the
application of a body of learning.
".
page 32
Acts Amendment (Consent to Medical Treatment) Bill 2006
The Criminal Code amended Part 4
s. 16
Part 4 -- The Criminal Code amended
16. The Act amended
The amendments in this Part are to The Criminal Code*.
[* Reprint 12 as at 1 June 2005 (see the Schedule to the
5 Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Act Compilation Act 1913).
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1, p. 112 and
Acts Nos. 3 and 10 of 2006.]
10 17. Section 259 amended
Section 259 is amended as follows:
(a) by inserting before "A person" the subsection
designation "(1)";
(b) by deleting "treatment --" and inserting instead --
15 " treatment (including palliative care) -- ";
(c) at the end of the section by inserting --
"
(2) A person is not criminally responsible for not
administering or ceasing to administer, in good faith
20 and with reasonable care and skill, surgical or medical
treatment (including palliative care) if not
administering or ceasing to administer the treatment is
reasonable, having regard to the patient's state at the
time and to all the circumstances of the case.
25 ".
18. Section 265 amended
Section 265 is amended by inserting after "treatment" --
" (including palliative care) ".
page 33
Acts Amendment (Consent to Medical Treatment) Bill 2006
Part 4 The Criminal Code amended
s. 19
19. Section 275 amended
Section 275 is amended by deleting "treatment, and" and
inserting instead --
" treatment (including palliative care), and ".
5
page 34
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