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On the 1st of January 2000 amendments to the Guardianship and Administration Act 1986 came into operation. The amendments in summary cover two areas: being , 1 the ability to appoint a person as your Enduring Guardian (in a similar way to an enduring power of attorney); and, 2 setting out procedures for legal consent for medical treatment for people who cannot make that decision themselves.

Consent for the carrying out of any special procedure or medical or dental treatment on a patient may be given by the Tribunal however if it is just for medical or dental treatment a person responsible may give consent. (Section 39)

It is important to define the terms "special procedure", "medical or dental treatment", "patient" and "person responsible" to understanding what the effect of this provision means.

DEFINITIONS

special procedure any procedure to make a person infertile, any procedure for the purpose of medical research, terminating a pregnancy, removal of tissue for transplanting to another person or any medical or dental treatment that is prescribed as a special procedure

patient a person over 18 years of age and is incapable of understanding the general nature and effect of the proposed procedure or treatment, or is incapable of indicating whether or not he or she consents or does not consent to the procedure

person responsible is the first person listed below who is willing and available to make a decision

a person appointed under the Medical Treatment Act as a medical power of attorney a person appointed by the Tribunal to make the decision a person appointed as a guardian by the Tribunal with power to make such a decision a person appointed as Enduring Guardian with power under the document a person appointed in writing by the person to make decision about the treatment the person's spouse the person's primary carer (a person is considered to have the care of the person if it is (other than for remuneration) the person arranges domestic services and support) the persons nearest relative (child, parent, brother or sister, grandparent, grandchild, uncle then niece or nephew.)

medical or dental treatment being medical treatment including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care normally carried out by or under the supervision of a registered practitioner or, dental treatment normally carried out by or under the supervision of a registered practitioner , but does not include:

special procedure non-intrusive examination made for diagnostic purposes first-aid treatment the administration of a pharmaceutical drug in accordance with the dosage level if the drug is one for which a prescription is required or is not required and which is self administered

LEGAL CONSENT

The consent given by the Tribunal or person responsible for the procedure on the patient is the same as if the patient was capable of and had given the consent. (Section 40)

Registered Practitioners cannot carry out any procedure (including any emergency treatment ) on a patient if a refusal has been given.

The Practitioner can carry out emergency treatment without consent if the practitioner believes on reasonable grounds that the treatment is necessary as a matter of urgency to

save the patient's life, or to prevent serious damage to the patient's health, or to prevent the patient from suffering or continuing to suffer significant pain or distress (section 42A)

When the person responsible gives consent to medical or dental treatment on a patient he/she must act in the best interests of the patient. When considering if it is in the best interests of the patient the person responsible must take into account:

the wishes of the patient, as best can be ascertained, and the wishes of the nearest relative (if any) or any other family member of the patient, and the consequences of the patient if the treatment is not carried out, and any alternative treatment available, and the nature and degree of any significant risks associated with the treatment or any alternative treatment, and whether the treatment to be carried out is only to promote the health and well being of the patient. (Section 38)

WITHOUT CONSENT

A medical practitioner can carry out medical or dental treatment without consent only if:

the practitioner has made reasonable efforts to ascertain whether there is a person responsible and is unable to ascertain whether there is a person responsible or if there is a person responsible is unable to contact that person, and the practitioner believes on reasonable grounds that the treatment is in the best interests of the patient, and the practitioner has given notice to the Public Advocate, such notice being in accordance with the Act

If the practitioner carries out the treatment without consent in accordance with this provision then he/she must state in the clinical records why the treatment was in the best interests of the patient and how the treatment is promoting the health and well being of the patient. (Section 42K) CONSENT REFUSED

The practitioner can carry out medical or dental treatment when the person responsible has refused consent if he/she believes it is in the best interests of the patient and has given the person responsible notice in the required form to the person responsible within three days of the refusal and the person responsible has not made application to the tribunal within seven days of that notice. (section 42L & 42M)

A medical practitioner who carries out medical or dental treatment or a special procedure without obtaining consent either from the person who was seeking the treatment or from the person responsible in accordance with these provisions could be guilty of

assault and battery, professional misconduct, and/or civil proceedings for assault or battery.

It is therefore important to ensure consent is obtained from the responsible person and although consent does not need to be in writing it would be very prudent to have the person responsible sign a form that sets out clearly the type of treatment and confirms the person responsible gives their consent.

MEDICAL POWERS OF ATTORNEY

The Medical Treatment Act 1988 provides a system whereby a person who is still competent can appoint an agent to make decisions about medical treatment once the person is no longer able to make those decisions. This is commonly refereed to as a Medical Power of Attorney.

This Act also sets out the procedure to be followed if a person or the person's medical power of attorney refuses medical treatment. If the medical practitioner and another person are satisfied that the patient has refused medical treatment then a Refusal of Medical Treatment form should be completed.

If a medical practitioner carries out treatment knowing that a refusal of treatment certificate applies to that patient then the practitioner can be guilty of medical trespass and fined up to $500.00. A medical practitioner in reliance of a refusal of treatment certificate refuses to perform or continue medical treatment is not guilty of any misconduct, offence or civil proceedings. This applies even if the certificate was cancelled and the practitioner acted in good faith in refusing.

A person who is appointed as an Attorney under an Enduring Power of Attorney has no authority to make decisions about medical treatment if the donor is unable to make decisions. An Enduring Power of Attorney only enables the person appointed to deal with business and financial decisions of the donor.

THE MENTAL HEALTH ACT 1986

The Mental Health Act 1986 regulates the provision of treatment of involuntary patients. An involuntary patient as defined under this act is incapable of giving informed consent to medical or dental treatment (known as "non-psychiatric treatment"). Consent may only be given by a Guardian appointed by the Guardianship Board or the authorised psychiatrist.

APPOINTING AN ENDURING GUARDIAN

You can now appoint an Enduring Guardian ("EG") who can make decisions for you if you are unable to make decisions yourself in the following areas:

* where you are to live * with whom you are to live * if you are to work * with whom you are to work * the type of work you perform * for whom you are to work * what type of health care that is in your best interest * to restrict visitors

To have an EG appointed you must: * be over 18 years of age * be in the form as set in the Schedule to the Act (as set out in the attached document) * two witnesses, with one of the witnesses authorised to sign Statutory Declarations * neither witness can be a party to the document nor a relative of the proposed EG * the person appointed must be over 18 years old * cannot be appointed if that person is directly or indirectly involved in a professional capacity in providing the care accommodation or treatment for that person * if that person appointed can become ineligible because of any of the above reasons after the appointment. (section 35A)

FORMS STATEMENT TO PROVIDE TREATMENT

I, Dr. John Operation have informed you, the person responsible, about the nature of the patient's condition to an extent that would be sufficient to enable the patient, if he or she were able to consent, to decide whether or not to consent to the proposed treatment generally or to treatment of a particular kind for that condition,

You have not consented to the proposed treatment.

I believe on reasonable grounds that the proposed treatment is in the best interests of the patient.

Unless you apply to the Victorian Civil and Administration Tribunal and the Tribunal otherwise orders, I intend, not earlier than 7 days from today, to carry out the proposed treatment on the patient.

Registered Practitioner:- Dr.John Operation of 5 Blood Street Ballarat

Person Responsible:- Brian Death (husband of Betty Death) of 10 Death Street Ballarat

Patient:- Bettty Death

Dated: 20/11/00

 

---------------------------------- Signature of Registered Practitioner

REFUSAL OF MEDICAL TREATMENT FORM

I .................. (name) .......................... (address) certify that I am empowered to act in relation to decisions about medical treatment of .................... (name of patient) ("the patient").

I have been appointed to act by-

* an enduring power of attorney (medical treatment) issued under the Medical Treatment Act 1988.

* an order of the Victorian Civil and Administrative Tribunal under the Guardian and Administration Act 1986.

* person responsible as defined under the Guardian and Administration Act 1986.

I certify that-

(a) the patient has attained the age of 18 years:

(b) I have been informed about and understand the nature of the patient's current condition to an extent and would be reasonably sufficient to enable the patient, if he/she were competent, to make a decision about whether or not to refuse medical treatment generally or of a particular kind for that condition. I believe that the patient would request that no medical treatment, or no medical treatment of the particular kind mentioned below, be administered to him/her.

On behalf of the patient, in relation to his/her condition, I refuse-

medical treatment, being ......................................................... (specify particular kind of medical treatment

Dated:

Signed: .............. (Agent/Guardian for ...................... (name of patient) Delete whichever are not applicable

Verification

We each certify as follows:

(a) I am satisfied that ........................(name of agent or guardian) has been informed about the nature of the patient's current condition to an extent that would be reasonably sufficient to enable the patient, if he/she were competent, to make a decision about whether or not to refuse medical treatment generally or of a particular kind for that condition and that the agent/guardian understands that information:

(b) I was not a witness to the enduring power of attorney (medical treatment) under which .................. (name of agent) was appointed.

Dated:

Signed: ....................................... Signed: ....................................

(Registered Medical Practitioner) (Another Person)

Patient's current condition

The patient's current condition is .......................... (describe condition)

The patient is incompetent.

Dated:

Signed:

(To be by the same registered medical practitioner)

CONSENT BY PERSON RESPONSIBLE

I ...................of ..................... confirm that I am empowered to act in relation to decisions about medical treatment of .....................(name of patient)

I am the person responsible as defined under the Guardian and Administration Act 1986 as I am .......................... (relationship)

I certify that-

(a) the patient has attained the age of 18 years.

(b) I have been informed about and understand the nature of the patient's current condition to an extent and would be reasonably sufficient to enable the patient, if he/she were competent, to make a decision about whether or not to refuse medical treatment generally or of a particular kind for that condition. I believe that the patient would request that no medical treatment, or no medical treatment of the particular kind mentioned below, be administered to him/her.

On behalf of the patient, in relation to his/her current condition, I consent to the medical treatment being ......................................

Dated:

Signed: .................................

To be signed by the person responsible.

Verification

I ....................... (medical practitioner) of .........................certify that:-

I am satisfied that ........................(name of person responsible) has been informed about the nature of the patient's current condition to an extent that would be reasonably sufficient to enable the patient, if he/she were competent, to make a decision about whether or not to refuse medical treatment generally or of a particular kind for that condition and that the person responsible understands that information.

The patients current condition is ......................................................

The patient is incompetent of making a decision in respect to his/her medical condition.

Dated:

Signed: .....................................

Signed by the medical practitioner.

 

This is only a summary of the legislation and should not be relied upon as legal advise. If more information is required please feel free to contact Andrew Byrne a Specialist in Wills and Estate at BJT LEGAL Solicitors of 38 Lydiard Street South Ballarat, phone 53338888 or Email Andrew on abyrne@bjt.com.au.

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