Page 3657 - Week 12 - Tuesday, 21 November 2006
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Mrs Dunne will be speaking to this—relate to the area of possible abortion. We have some concerns specifically about items 12 to 17 of the bill in relation to that. I thank the government officers for their very prompt assistance and for their explanation of this bill. In respect of those concerns, it is probably opportune for me to read out that particular area of the bill.
In relation to items 12 to 15 of the Powers of Attorney Bill, section 70 of the Guardianship and Management of Property Act 1991 entrusts the guardianship tribunal with the decision-making power in relation to prescribed medical procedures for an incapacitated person. Abortion is a prescribed medical procedure.
You will also see the definition of “prescribed medical procedure” in the act. Section 70 operates once the tribunal makes a declaration under section 69 (2). The policy behind these provisions is that, in relation to an incapacitated person undergoing an abortion, the decision making should rest with the tribunal and not with anyone else.
Section 37 (1) (c) of the Powers of Attorney Bill strengthens this policy by clarifying its application in the context of an attorney’s exercise of power. That is, an attorney cannot exercise that power even if the principal authorises it under the enduring power of attorney. Allowing an attorney to exercise such power would involve a risk of possible abuse of a principal. If the attorney wants to terminate the pregnancy of an incapacitated principal, the attorney would need to apply to the tribunal.
In relation to items 16 and 17, the general principles in schedule 1 of the bill are for an attorney of an incapacitated principal to comply with. A child cannot be a principal. Hence the need for the principals to include recognition of an unborn child does not arise. The right to life is also not suitable for inclusion. An attorney could consent to withhold or withdraw medical treatment to the principal only if the enduring power of attorney authorises it.
In addition, in exercising that power, the attorney has to comply with the requirements of section 46 of the bill. Section 85 obliges a doctor to refuse to withhold or withdraw medical treatment to a principal where the doctor thinks it is not in the best interests of the principal. These provisions mean that there is no need for an explicit right to life to be provided in schedule 1.
Principle 1.11 is that a decision about the health care of a principal should be, in a way, least restrictive of the individual’s rights and freedom of action. This principle does not prejudice the right to life the principal has.
I thank the officials for that explanation. This is a difficult area of law. You are dealing with people who are unable, ultimately, to exercise their will. They are entrusting that to someone. It is crucially important that there are as many safeguards as possible to stop elder abuse, which we see all too often.
There are still problems, might I say, in relation to people who, while they are still probably compos mentis, are conned into putting things into their will that they probably would not. I have seen situations like that in my travels as well. This is a very difficult area. The principal, as much as they possibly can, should be able to exercise control over their own life but, sadly, at times that is not possible.
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