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ACTS AMENDMENT (CONSENT TO MEDICAL TREATMENT) BILL 2006

This is a Bill, not an Act. For current law, see the Acts databases.


ACTS AMENDMENT (CONSENT TO MEDICAL TREATMENT) BILL 2006

                       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



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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




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       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:




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    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.




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                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;




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                   "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

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                              (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).




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          (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.
                                                                                      ".




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     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                                                                                      ".




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     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



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              (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



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                                       (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

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                        (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.




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             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.




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     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


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                             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).


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             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.

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                (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.




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       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;

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                       (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).




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     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.



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               (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).




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      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.

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               (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.


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        (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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                      (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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     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.




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               (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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       (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




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                              (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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               (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,



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                      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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                 (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.




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     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.
                                                                               ".




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                                      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)   ".




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    s. 19



    19.       Section 275 amended
              Section 275 is amended by deleting "treatment, and" and
              inserting instead --
              " treatment (including palliative care), and   ".

5